Evidence of meeting #77 for Indigenous and Northern Affairs in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was agreements.
Liberal
The Chair Liberal MaryAnn Mihychuk
Good morning, everybody. I'll call the meeting to order. We have many people who we are hearing from today, so I don't want to waste any time.
We've been generously offered a prayer to start our hearings, a traditional practice for many indigenous peoples, and we want to respect and honour those traditions. Chief Sam Gargan is willing to lead us through the prayer, and I'm very grateful.
I invite you to do that.
Sam Gargan Sub-Chief and Mayor of Fort Providence, Deh Gah Got'ie First Nations
Creator and Father, we thank you for this day. As we acknowledge gratitude for the circle of life and for all creation, we ask that you bless the company gathered here today. Light for us a path that leads to harmony and balance amongst all your children.
We humbly seek your guidance and strength. With each new day, instill in us wisdom to use the gift of life for the good of all. May the fruits of our deliberation form a visible outcome in the world community. We ask that you give us the skills to build bridges in the spirit of co-operation. May we be worthy as stewards of this land to be blessed with your guidance and to serve those yet to come.
Creator and Father, we thank you for our children, our parents, and our elders. Protect those out on the land and those out in the workplace, and as we move forward, we ask that you weave into our lives a solidarity of purpose for the whole of your family.
Mahsi.
Liberal
The Chair Liberal MaryAnn Mihychuk
Meegwetch.
In Canada, we have a visionary Prime Minister, in my opinion, who has decided to move Canada on a process of truth and reconciliation, and it's important, especially for this committee, to have, instead of the rote recognition, a recognition of the lands we're on here, those of the Dene and the Métis peoples of N.W.T., with their long history. We're grateful for the invitation and for the ability to meet with you to discuss the important issues of land claims, both specific and comprehensive.
This is our final journey of a cross-country tour. We were in Vancouver with the Tsawwassen, in Winnipeg with the Métis and the first nations, in Ontario with the Mohawks, and in Quebec. This is our final stop, after an invitation from MP Michael McLeod, who was a member of our committee but has left for the more mundane business of finance. We miss him, and we are very grateful to be here.
Pursuant to Standing Order 108(2), we are conducting a study on specific claims and comprehensive land claims agreements.
The way it works is that you're on our first panel and you'll have 10 minutes to present. You're not required to use all of that, but I will start to give you signals and be more difficult as we get closer to 10 minutes. Then, after all the presenters have completed, we have an opportunity for questions, and that will fill the whole hour.
I understand that we are going to start first with the mayor of Fort Providence, Sub-Chief Sam Gargan.
Sub-Chief and Mayor of Fort Providence, Deh Gah Got'ie First Nations
Thank you, Madam Chair. I welcome you to Yellowknife, committee members.
I will begin. I'd like to table some documents with you, Madam Chair.
I've worked with Dene Nation for many years. One of the things we've developed is called “On the art of stealing human rights”. It's a document that we use when dealing with governments in terms of how we ourselves are contributors to our own demise at times.
The second document is called “Dene Principles & Values”. That was developed in 1987 by a bunch of elders, based on the Dene document “A Proposal for Public Government”.
The third one is a document from the Keepers of the Water declaration done in 2004 and called “One Land, One People” .
The final document is the Dehcho first nations resource protocol on cultural appropriation, the “Decho Traditional Knowledge Protocol”. That document itself is based on intellectual property and how traditional knowledge can be shared but not used as a transferable document.
For example, in 2000 the Mackenzie gas pipeline process started, with 10 years spent on that process, so for 10 years we also shared a lot of traditional knowledge, and traditional knowledge in regard to the pipeline itself, the Norman Wells pipeline. A lot of the presentations were based on experience from other industrial development. We also have a draft of what we call an “industrial development protocol”.
Madam Chair, these are the documents I want to table with you.
When I was growing up, Madam Chair, my mother told me a story when I was seven years old that sort of set my path. My mother was unilingual. She never spoke a word of English. I guess this vision out there in the bush was that a sea change was coming, and it prepared me for that change. I was also told in this vision that there would be some areas in which I would take a leadership role. It wasn't so much what she said that made me choose that path; it was the path that chose where I was going, so 50 years later.... I've been in politics for about 50 years now.
Decentralization started happening back in the fifties; that was at the time that aboriginal people were allowed to consume alcohol also. There was also relocation being done, and there was hardship for the people being relocated. Grise Fiord was one relocation, and Resolute Bay was the other one.
In the sixties, the term “northerner” started to be used a lot, and in 1969, the white paper occurred. The 1969 white paper was driven to make all aboriginal people the same as every other Canadian, and that was the beginning of the native struggle. The native people stood up and said, no, that they had a unique relationship with Canada, that Canada was their homeland, and that their way of life was being threatened and they were losing their language and culture. That started happening, and in 1983 a report came out called “Learning: Tradition and Change”.
That report itself was from a standing committee of the Legislative Assembly going all over the north and hearing from the communities that we needed an aboriginal institution to deliver language, culture, and a way of life. The report itself, “Tradition and Change”, did not say that. It said that aboriginal language and culture should be learned, should be taught in the schools. I want to add that the language, the culture, and the way of life do not belong in a white institution.
You only have to learn from the French people. They have their own institutions. We're still made to fit in. That's where it started: in 1969, with the white paper. Although it got rejected, I think that same principle from the white paper was transferred to the north. The term “northerner” started being used a lot, and the aboriginal people were just a part of that melting pot.
I had a chance to travel the river this summer for one month with Dechinta university. In that travel, we had a lot of people from other parts of the country, and we had a lot of people from the north as well. One thing we started teaching them was “thinking to learn” and “learning to think”, two very different concepts that derive from the white culture and the aboriginal culture.
The elders will tell you that all first nations are self-reliant. Now, a lot of our people are not employed, and you will find a disturbing trend in the north about the employment of aboriginal people and the reason why a lot of them are not employable: because of criminal records. But a lot of them also live off the land. That's where their income comes from; they're self-reliant and they have self-determination. Therefore, self-government comes from the two: self-reliance and self-determination. The elders are also saying that.
In our travels down to Fort Good Hope this summer, I got as far as Fort Simpson. It took us a month to get to Fort Simpson from Fort Providence, and we thought a lot about how people lived off the land, and not just in terms of surviving, because it's a way of life for us. It's our home. It doesn't matter where we are, we are not lost.
We have two orders that we live by. The natural order is sunlight, daylight. It gets dark and you go to sleep; when there's light, you get up. There are also the seasons. The seasons develop our culture and our way of life to them. We have spring hunts, summer gatherings, fall hunting seasons, and winter trapping. Those are all parts of our way of doing things. That's based on the natural order.
We also have the learning to think kind of thing in the aboriginal culture. You learn in stages, not in steps. You're born, you sit up, you crawl, you stand up, you walk, and you talk. Then gender comes into being at a later stage, as opposed to one to 12 or an entrance level to doctrines and all that stuff. That's the way we develop ourselves.
As a member of the Legislative Assembly, I found myself fitting in a lot of times. Most aboriginal people in the communities have three orders of government in our own community: the municipality or the hamlet, the band, and the Métis Nation—three governments. You really don't need that, but that's what we have right now.
I still have a lot to say, but....
Liberal
Sub-Chief and Mayor of Fort Providence, Deh Gah Got'ie First Nations
Yes. Okay.
Anyway, in the last 50 years, I've been trying to separate the aboriginal culture from the white culture. We need to have our own institutions. I know that the terms “amalgamate” and “incorporate” are used; that language is in a lot of the government-driven policies. That in itself, we can say, is assimilation.
The government wrote to me in 2006 about amalgamating the environmental impact review board and traditional knowledge. I took the view that, no, we cannot do that. You cannot integrate traditional knowledge into government programs. It will not work. Why? If you do it for the environmental assessment, then traditional knowledge is used to facilitate development.
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you, but I'm sorry, I'm going to have to.... With respect, we have two other presenters.
Please watch the time. I'll be as generous as possible. I'm trying to keep the process moving.
MP McLeod.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
Madam Chair, being as our NDP colleague is missing and he would normally have seven minutes for questions, if each presenter has an extra two or three minutes, I think that would be.... Not in this case, I know, but for the future, perhaps that would make some sense to our panel, because certainly the comments are very important.
Liberal
The Chair Liberal MaryAnn Mihychuk
In this case, we went for 12 minutes, so I tried to be generous. With respect, will have more time for question period as well.
We are pleased to have with us the North Slave Métis Alliance. They're headline makers.
Liberal
The Chair Liberal MaryAnn Mihychuk
We have with us Bill Enge, president, and Christopher Devlin.
Please go ahead.
Bill Enge President, North Slave Métis Alliance
Thank you, Madam Chair.
As you've heard, my name is Bill Enge. I'm the president of the North Slave Métis Alliance. I have been the president of the North Slave Métis Alliance for 14 consecutive years now.
Since I am in the political business, I thought I'd let you know it's been a very hectic week and a good one for the North Slave Métis Alliance. Not only did we just win the biggest lawsuit in the history of our organization in the Federal Court of Canada on Thursday—you'll hear more about it in my presentation—but, fortunately for me, I just got re-elected to a four-year term of office on Monday. It is a good week for the North Slave Métis Alliance and my board of directors.
Welcome, panel members and committee members, to the traditional lands of the Yellowknife and the North Slave Métis Alliance and the North Slave Métis people.
The North Slave Métis Alliance appreciates the opportunity to provide its views to the Standing Committee on Indigenous and Northern Affairs in support of its review of specific claims and comprehensive land claims in Canada, particularly the current process under way in the Northwest Territories.
The North Slave Métis Alliance is the only indigenous group in the Northwest Territories that has obtained judicial recognition of its members' common law aboriginal rights as Métis people. This has been established both in the 2013 Northwest Territories Supreme Court decision in Enge v. Mandeville and in last week's Federal Court of Canada decision in Enge v. Canada.
In the words of the Federal Court:
...the NSMA is a credible organization that has existed for many years, advocating for the rights of the Métis of the north Slave region. The NSMA further represents a sizeable and identifiable constituency within the Métis community of the Northwest Territories, one with concerns and priorities that differ from those of the NWTMN.
Yet paradoxically, the federal government has refused to negotiate with the North Slave Métis Alliance because of outdated land claim policies and models.
Why is this? The North Slave Métis Alliance submits that the status quo of Canada's regional negotiation policy and balkanization of the indigenous communities into artificial regional groupings in the south Mackenzie Valley has simply not worked.
Canada's regional approach is the fundamental obstacle to concluding modern comprehensive land claim agreements in the Northwest Territories. Canada's policy approach to negotiations ignores the law, especially section 35 of the Constitution Act, 1982. Canada's current negotiations policy does not pave the way to reconciliation, which is, as I understand it, one of the major goals of this Liberal government.
Two recent reviews of Canada's negotiation policies in the Northwest Territories support the NSMA's position: the report of Tom Isaac, ministerial special representative, and the decision of Madam Justice Mactavish of the Federal Court of Canada in Enge v. Canada.
In June 2016, the Governments of Canada and the Northwest Territories jointly appointed Tom Isaac as a minister's special representative and mandated him to examine existing processes and report on possible amended or alternative processes that could successfully conclude outstanding claims in the area. Mr. Isaac delivered his report to the two ministers on March 3, 2017.
The Isaac report concluded: one, the federal mandates in the Northwest Territories show little regard for significant changes in the law regarding section 35; two, the legal and political landscape in aboriginal law has changed significantly since 1990, with the Supreme Court of Canada handing down nearly 60 decisions on the meaning of section 35; and, three, Canada's rigid reliance on a policy approach formulated in 1990 is not compatible with the unresolved interests in the southeast Northwest Territories.
Last week, on October 19, 2017, the Federal Court of Canada delivered its decision in Enge v. Canada. Imagine: that's just a few days ago. The court held that North Slave Métis Alliance members were not adequately consulted by Canada respecting the Northwest Territory Métis Nation Land and Resources Agreement-in-Principle signed on July 31, 2015.
The Federal Court held that Canada had “misapprehended the severity of the potential impact” that the Northwest Territory Métis Nation land and resources agreement “would have on the Aboriginal rights of the [North Slave Métis Alliance]'s members”. The court concluded that Canada “entered into its consultation with the [North Slave Métis Alliance] based on a fundamental misconception of the nature and scope of its duty to consult and could not properly assess what, if any, accommodation measures would be appropriate”.
The court ordered Canada to engage in meaningful consultation and appropriate accommodation with the NSMA and not to conclude a Northwest Territory Métis Nation final agreement until that had occurred. The court made such an important decision for several reasons.
One, although the Northwest Territory Métis Nation agreement in principle is styled as the Métis land and resources agreement, it is based on Dene ancestry rather than Métis ethnicity, or the application of criteria set out in the Powley test.
The Northwest Territory Métis Nation lands and resources agreement will extinguish aboriginal rights exercisable on the north side of Great Slave Lake, which is where we are now, for all those “eligible to be enrolled”, including those members of the North Slave Métis Alliance with Dene ancestors from the South Slave region, even though—and this is important—North Slave Métis Alliance members are ethnically Métis and the North Slave Métis Alliance has never been invited to the Northwest Territory Métis Nation negotiation table.
The wording of the Northwest Territory Métis Nation Agreement-in-Principle non-derogation clause and enrolment provisions pre-exist the enactment of section 35 of the Constitution Act, 1982. Imagine that: they were operating on things that came even before the Constitution of Canada was brought to this country. Canada has never required the Northwest Territory Métis Nation to submit a proof of claim pursuant to the Baker Lake test, something Canada's policy has required for almost 25 years before negotiations occur.
Canada has never asked the Northwest Territory Métis Nation to validate or prove the people it claims to represent, i.e., it never has required them to produce a membership list, relying instead on estimates of who might be eligible to be enrolled under the final agreement.
Because the Northwest Territory Métis Nation refused to disclose membership information, the Federal Court drew an adverse inference that such disclosure would not support the Northwest Territory Métis Nation's claim to be the only organization entitled to represent the aboriginal interests of the Métis people of the Great Slave Lake area, of which the North Slave Métis are part.
Canada admitted that the crown's intention in signing the agreement in principle was to affect the aboriginal rights of all those eligible to be enrolled, whether or not they actually enrol, and then refused the North Slave Métis Alliance's two accommodation proposals that we put to them during the so-called consultation period.
The intentional extinguishment by Canada of the very aboriginal rights for which the North Slave Lake Métis Alliance has obtained judicial recognition on a prima facie basis—which is what a judicial review requires for the threshold for the court to agree that a wrong has been committed against an applicant—and without any negotiation with NSMA members, is not a step towards reconciliation with any aboriginal group.
More egregiously, Canada ignored the Powley test, although federal negotiators were aware that Powley had become the law of the land regarding how Métis held their aboriginal rights in this country.
It was not honourable conduct by the crown to disregard the rights of Métis with such indifference, considering the significant potential adverse effect of aboriginal harvesting rights on the Métis people of the North Slave area. The court was also clear that Canada cannot choose which Métis organization will represent the Métis collective when there are multiple constituencies represented within that collective. Canada cannot play favourites. At least with respect to the North Slave Métis Alliance, Canada's approach “lacks...justification, transparency and intelligibility”, which is a direct quote from the judge's decision.
As to the way forward in the Northwest Territories, given the report of the minister's special representative and the recent decision of the Federal Court, it is clear that the path forward to overcome obstacles to achieving lasting settlements in the southeast Northwest Territories is according to the framework of section 35 of Constitution Act, 1982, as recommended in Mr. Isaac's report, and as applied by the Federal Court in Enge v. Canada, namely, by focusing on core principles, such as: moving away from the failed 1990 Dene-Métis agreement as the framework for negotiations, and instead using section 35 for the framework, including its objective of reconciliation and the principle of the honour of the crown; two, respecting other section 35 interests and rights and recognizing that section 35 rights need not be exclusive in nature, thus showing a path forward to address the tricky issue of overlapping claims to the same geographic areas in the north; and, three, being flexible and not unreasonably rigid in mandate or negotiation positions.
The North Slave Métis Alliance recommends that the committee encourage Canada to implement the direction given by the Federal Court in Enge v. Canada, and the guidance of the Isaac report's recommendations, to use the principles of reconciliation inherent in section 35 and the honour of the crown as the new framework to settle comprehensive land claims in the southeast Northwest Territories.
Once again, the North Slave Métis Alliance would like to express its appreciation for the opportunity to present these submissions. The North Slave Métis Alliance is grateful for the committee's attention to this important matter.
Thank you.
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you.
Our other presenters on the list are not here, unless somebody else is representing Bill Erasmus...?
Then we're going to go on to the question period, where we'll have more opportunities for you to elaborate on your presentations and MPs will have questions. Each MP will have a seven-minute round, and then we'll move to another member.
We'll start with MP Michael McLeod.
Liberal
Michael McLeod Liberal Northwest Territories, NT
Thank you, Madam Chair, and thank you to both the North Slave Métis and Sub-Chief Sam Gargan.
I know that both of you have a long history in this whole area of trying to resolve the issue of land tenure and governance. You've certainly been up against a lot of challenges. I want to scratch the surface on something you said, Bill, about the land claim policies and models being outdated, which I know has been a real frustration for your organization, but given your experience, I'm going to ask both of you if you could talk a bit about how we can make the changes. What needs to be changed? Do we need to scrap the mandate? Do we need to change policies?
In your case, Sam, I know that the Dehcho first nations had, for the longest time, the Dehcho proposal, which was a model that was totally different from what they've ended up embarking on, which is pretty much the comprehensive claims policy. I hear all the time that people are not satisfied, but that's where they wanted to go.
Maybe I'll give you guys some opportunity to share the time and talk to us. Tell us what needs to be changed. Do we need to throw the comprehensive claims policy out the window? Do we need to throw government policy out the window? Do we need to allow claims to be negotiated in isolation based on what you need in order to provide governance and management for your membership? Give us an idea of what your vision is, what you're working towards.
We can start with you, Bill, but don't take all the time.
President, North Slave Métis Alliance
Thank you, Madam Chairman, and thank you very much, Mike. I appreciate that.
Indeed, what I'm recommending in order to get the North Slave Métis Alliance to the land claim table is that, first of all, there has to be a recognition by the crown that the North Slave Métis people exist on the north side of Great Slave Lake, with aboriginal rights. It's ludicrous that the North Slave Métis people have to keep going back to court against the crown to get the crown to recognize that we have section 35 aboriginal rights to begin with, and that we have a right to be here on our homeland on the north side of Great Slave Lake. Let's start there.
The first thing we want INAC to do is to stop trying to oppress and remove our section 35 rights from us. When we can get past that, the second thing we want is to have INAC respect the fact that the North Slave Métis people are section 35 aboriginal rights holders according to Powley. If we can get there, then we would like INAC, as the agency of the crown that undertakes land claim negotiations on behalf of the crown, to provide us with a land claim table in accordance with our section 35 aboriginal rights vis-à-vis Powley.
We are Powley Métis, which is how you define which Métis—where in Canada—have section 35 aboriginal rights. Not every single mixed-blood aboriginal person in Canada can meet the Powley test. Not every single mixed-blood aboriginal person in Canada has section 35 aboriginal rights. The members of the North Slave Métis Alliance have been vetted by the Powley test and are the only Métis in all of the Northwest Territories—
President, North Slave Métis Alliance
Okay. Let's go there. Given that's all in place, then we would say that it's time for the crown to look at providing a new form of land claim negotiations that's more flexible than the one they've been using. The outdated model is too inflexible. They look for hermetically sealed regions and hermetically sealed land claims. There has to be a flexible land claim approach that allows for overlap.
We need to be able to share our land claim areas that are overlapping with those of the Tlicho, the Akaitcho, and any other aboriginal user groups. In this case, if on a section 35 basis we're Métis, we would have a land claim table that is flexible and that allows us to share the land among ourselves, the Akaitcho, and Tlicho.
Liberal
Michael McLeod Liberal Northwest Territories, NT
Bill, I'm really keen to get to something, and I'm not sure you'll touch on it. It's the certainty clause in this comprehensive claim policy. You're okay with that?
President, North Slave Métis Alliance
In the comprehensive claims policy? Well, I'm just talking about a more flexible one. Perhaps I should get my legal counsel in here. He can explain it better than I'm explaining it. I'll let Chris flesh it out for you.
Christopher Devlin Legal Counsel, North Slave Métis Alliance
We have just a couple of points.
The first is that Canada adopted a specific regional negotiation policy here in the NWT after the 1990 failed Dene-Métis agreement. That regional policy worked better in the northern Mackenzie Valley. It's not working in the southern Mackenzie Valley because there are a multitude of different indigenous groups using the same area. You can't have, as Bill said, hermetically sealed regions anymore.
The policy has to evolve from being geographically based to being much more ethnically based or much more about identifying the different indigenous users and conceiving of claims that are specific to them and settlements that are specific to those groups of users, rather than specific to a region generally.
On how you would deal with the certainty or the non-derogation clauses, because they go hand in glove, you would tailor those clauses not to the region but to the specific users who are voluntarily enrolling with that under that agreement. They're the ones who would decide if that's acceptable to them and to codify their aboriginal rights under the agreement.
Sub-Chief and Mayor of Fort Providence, Deh Gah Got'ie First Nations
On the comprehensive land claims policy, there was a review done some time ago on it, but there is no flexibility in the policy itself. For governance, for example, it's more like municipal powers. If you look at the 10 principles that the federal government came up with in its effort to define “nation to nation”, that is the one that we would like to see followed. On the certainty clause, the federal government wants that certainty clause for themselves, but it doesn't say anything about our certainty in the final agreement. There has to be some harmony between those two.
We have Treaty No. 11; the Canadian Constitution Act, 1982; the Berger commission; the Dehcho declaration; the Dene Nation declaration; the Royal Commission on Aboriginal Peoples in 1996; the common ground principle in 1998; the statement of reconciliation in 1998; the interim measures agreement of 2001; the interim resource development agreement of 2003; the framework agreement; the UN declaration; and, the Prime Minister's apology: they all should count for something. I think the timing is right. Maybe it's time to refocus somewhere else—
Sub-Chief and Mayor of Fort Providence, Deh Gah Got'ie First Nations
—to allow first nations their self-determination.