Indigenous and Northern Affairs Committee on Oct. 23rd, 2017

[The Chair, Liberal, MaryAnn Mihychuk]

Good.

We're looking at moving the questioning to MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair, and thank you to both presenters.

I want to start with Mr. Gargan. You tabled a document which you called a first nations “resource protocol”. Can you tell me more about that particular document?

[Sam Gargan]

It's based basically on a lot of the agreements, the impact agreements that came out. Voisey's Bay is one of them. There are the Mackenzie Valley one and the Norman Wells pipeline and so on. We have a draft. What I'm tabling is not that draft, mainly because we do not have a final agreement, but what we see in our final agreement is that at some point there has to be a stage in which we have a Dehcho mining act, a Dehcho health act, and a Dehcho education act. That should be part of that step towards self-determination once we sign a final agreement. Also, the legislation, along with the final agreement, should be in parallel.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

You also talked about not using white people's institutions in terms of culture and language, and you talked about an institute. Could you talk a bit more about what you were thinking of in that area?

[Sam Gargan]

I'll show you a picture of a moose here, a golo. If you're in a white institution, you learn from paper, not from your own environment. If you say the same thing out there, it takes on a whole new meaning, because it doesn't just mean the moose itself but the environment it lives in, the water it drinks, the food it eats, and so on. Showing a picture of a moose in a classroom is not the same.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Sometimes in this business, I wish I were a lawyer, because I think you can understand many of these very complex issues more clearly than I do. Being a nurse, I tend to be very practical in terms of what we do and where we go.

Essentially, from your perspective, the Government of Canada has a long history of not identifying the right people to negotiate with. That is the essence of the case. I don't know: is it the Government of Canada or should the indigenous communities come forward? How can we get to where we need to be in terms of identifying the right groups, those that you're actually talking to? Who are the rights holders?

I know that the current government is currently spending a lot of time with advocacy groups, such as the AFN and the ITK, who are not actually rights holders in their own right. How do we create a system whereby the government is talking to the right people?

[Bill Enge]

Thank you for that question. There's a very simple solution to that issue, and it's something that I've requested in the past. The government—INAC—needs to provide aboriginal organizations such as the North Slave Métis Alliance with the funding to undertake the creation of membership lists.

The Government of Canada did embark on that very project some time ago, after the Powley test came into existence. The Powley case was ruled on and came into law in 2003. It was a moose-hunting case that happened in Sault Ste. Marie, Ontario. The Supreme Court of Canada ruled that Métis have an aboriginal right to hunt for food. This case brought about a test to determine which Métis, and where in Canada, had this aboriginal right to hunt for food. In order to do that, the Supreme Court of Canada approved a test to be applied to each and every Métis person across Canada to determine which of the Métis people in each geographic part of Canada had a right to hunt for food, which is a section 35 constitutional right.

The Government of Canada gave money to the Métis National Council of Canada to create a Métis registry so that these Métis could be identified for the purposes of harvesting. Well, the Government of Canada never gave any money to the Métis in the Northwest Territories. I'm not sure how this money managed to trickle out across all of Canada, but certainly none of that funding ever made its way into the Northwest Territories. The North Slave Métis Alliance had to find its own funding to do the Powley test in order to make sure that our members met the Powley test.

The answer to your question is that the crown, I think, has an obligation to provide the funding so that each and every Canadian citizen who's a Métis person can get the necessary documentation to prove they meet the Powley test so the Government of Canada knows who it's dealing with and so there are these registries or lists that can be produced for that purpose.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Maybe this is a question for the lawyer at the table, but how does the Daniels decision intersect with all this?

[Christopher Devlin]

I have 30 seconds for this.

I think there's a more pragmatic solution, which is that Canada shouldn't play political favourites based on who fits their narrow policy criteria. Here, at least with respect to the North Slave Métis Alliance, Canada has always known that the NSMA existed. It has existed for the same length of time as Canada's negotiating partner, the NWTMN. They just made a political decision, a policy decision, to only recognize the NWTMN and not negotiate.

For over 20 years they've been telling the NSMA to go somewhere else and to be someone else, as opposed to using some type of objective criteria to ask, “Actually who are the indigenous people in this area?” There are a lot of people, including the indigenous people, who can tell them that. That's as opposed to asking, “Who fits into our policy box?”

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

You're breaking the myth that lawyers go on and on.

[Christopher Devlin]

I'm doing my best, Madam Chair.

[The Chair, Liberal, MaryAnn Mihychuk]

I'm moving the questioning over to MP Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thanks to both of you for being here.

President Enge, I want to pick up on the issue of overlap. You mentioned that it's one of the things we need to get our heads around. Can you identify any particular models where the overlap of rights and claims has been managed well?

[Bill Enge]

Thank you for that question. I'm no land claims expert, by any means, right? Of course, my experience is pretty much in the Northwest Territories, but I do know that there's a lot of overlap going on in British Columbia. That's a good example of where there are multiple aboriginal groups with multiple users and plenty of overlap going on. They're managing to figure that out just fine down there, so there it is.

I can tell you that my legal counsel is from British Columbia. He is an expert lawyer from that part of Canada, where he has multiple aboriginal clients who have multiple land overlaps. The Governments of Canada and B.C. have managed to figure out how to settle land claims with multiple users with overlap, so it's nothing new in this country.

For some reason, the Government of Canada has decided that it doesn't want to apply something that has already been done elsewhere in Canada up here where it needs to be done.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Devlin, maybe you could expand on this. You both mentioned flexibility in terms of policy. What elements would be part of that flexible model?

[Christopher Devlin]

Building on Mr. Enge's answer, I would say that historically Canada has always approached comprehensive claims and land claim settlements as intact jigsaw puzzle pieces, and they want the claims to fit nicely and butt up against each other, but within the claim area, there's only one treaty and there's only one claim settlement.

I think the model that we're going to have to move towards to really achieve reconciliation, particularly where you have a lot of indigenous users in a particular area, is to consider how we reconcile the overlapping and equally legitimate benefits, equally legitimate opportunities, and equally legitimate use of the land.

Part of the thinking comes from the historical approach to treaty-making, right? Part of the thinking comes from the legal doctrine of aboriginal title and its exclusivity, but by having to rigidly adhere to those principles, I think it prevents making very sensible settlements or agreements now, where you have multiple users on the same landscape, and having the imagination and flexibility in the policy to resolve what is happening on the ground, which is multiple users on the ground.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you.

I'd like to share my time with my colleague Mr. Harvey.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Welcome, and first of all, thanks to all of you for coming.

My first question is for Mr. Devlin, and then I have a question for all of you.

First of all, do you agree wholeheartedly with Mr. Enge's statement about the current state of overlapping claims in B.C.?

[Christopher Devlin]

I think the current state of overlapping claims in B.C. is one that a lot of people are applying their imagination to. There's also a dialogue between the negotiation tables and there are some court decisions about recognizing the practical reality of stacking claims on one another.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

That's a political answer. You should be a politician.

[Voices]

Oh, oh!

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Then my question to all of you is, how do you think that works? The system historically is very rigid. The British system, or the colonial system, recognizes title based on geographic area. How does that work among indigenous nations for the overlapping piece?

[Christopher Devlin]

I have one quick comment, which is that Canada has to stop addressing first nations in a cookie cutter fashion. Each first nation is separate and unique, and those separate and unique circumstances—

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Right. I recognize that, and I'm not disagreeing with what you're saying there, but what I'm saying is that if you have 10 indigenous nations, you can recognize them all differently, but if they all fit inside the same fishbowl, they all have to still be inside the same fishbowl. On recognizing them all independently, I agree with you on that point. What I'm asking you is, how does that work among first nations?