Thanks, everyone. Thanks to the committee for having me, and thank you for your work on such a serious and important matter.
Please bear with me. I'm going to give you a little bit of background about Tsawwassen, because I believe it's good context for my perspective.
I was chief for 13 years and on council for 6 years at Tsawwassen. I negotiated and implemented our treaty, which came into effect four years ago. It's a modern land claim and self-government agreement. We successfully removed the Indian Act from our community. We've replaced it with our own legislation and institutions that were created in our constitution. Our community built our constitution at the grassroots, and while it took 16 years to negotiate and have it come into effect, we made good use of that time by engaging as a community to sort out what our vision was for our future and how we might achieve that.
I took community consultation and engagement very seriously, and I think the participation level in the ratification of our treaty demonstrates this. About 95% of our members voted, and of those, 70% approved the treaty and the new government structures, which include a legislature, an executive council, a judicial council, and an advisory council. We have also established an economic development corporation and a provincial prosecutor to deal with enforcing Tsawwassen laws in the provincial court system.
My perspective is one of having directly experienced the Indian Act, of trying to improve the Indian Act through the First Nations Land Management Act or other sectoral initiatives, and of moving to self-government, which is based on the inherent right policy. This provides for some unique insight.
In the Tsawwassen treaty, our model of governance is that we've agreed to integrate with provincial and federal laws. What this means is that Tsawwassen, British Columbia, and Canada can enact laws, and the treaty sets out whose laws are paramount if they conflict. In this concurrent model, it is impossible to have a gap now, and if we don't have the law, the relevant federal or provincial law will apply.
On matrimonial property, our treaty says that we have standing in any judicial proceedings that deal with Tsawwassen lands upon the breakdown of a marriage. The court will consider any evidence and representations in respect of our law, which may restrict the alienation of our lands to Tsawwassen members in addition to any other matters that are required by law to consider.
In the absence of a specific matrimonial law, the provincial law now applies in Tsawwassen. I think the real important element of the concurrent law model is that, unlike some may believe, it does not infringe on our inherent right of self-government. Instead, it provides a nation with the ability to choose whether to rely on the existing provincial law or exercise a law-making authority. This choice is not made through a delegated instrument; it's made pursuant to an agreement that was made on a government-to-government basis.
This background is important, but the main points I want to raise are from a pragmatic, on-the-ground perspective. Of course we want equality for our women, but we want it more than just in law and theory. We want substantive equality that we can actually implement. The law by itself won't do it. In my experience, you really need to focus on implementation.
On the issue of consultation, it's clear that this government has a different approach to consultation than first nations expect. It's entirely up to the Government of Canada to manage its own legal risk. A top-down approach in addressing a complex issue such as this is ill-advised, in my opinion. It's unfortunate that the focus on the process takes away from the focus or even the legitimacy of the product that's being advanced. The lack of collaboration, let alone adequate consultation, as defined by the courts, removes a lot of opportunity to really get at solving some fundamental and legitimate underlying concerns on the implementation of this bill.
First, we're dealing with particular jurisdictional issues in the absence of dealing with the broader context. First nations councils are inundated with the impacts of colonization and the impacts of the Indian Act. Picking at this one strand in isolation of the broader systemic challenges that first nations face is frustrating to many, I believe.
I think you need to reconcile many jurisdictional issues to support the development of a matrimonial law. We continue to run up against the problem of the square peg in the round hole when comparing first nations traditional values, including the concept of communal lands and interests, the current reality of the Indian Act, and the values of the provincial legal regime if they are forced on first nations.
Not only is there a jurisdictional gap, but there's a fundamental incongruency between the traditional first nations Indian Act and federal and provincial regimes. In Tsawwassen's case, we're testing integration with provincial regimes, but this is only by our choice. As well, it was facilitated through complex tripartite negotiated arrangements to try to ensure that our unique rights and interests as a first nation were respected and accommodated in those provincial systems.
Our approach is very controversial among other first nations. I cannot stress enough that we needed to choose this model ourselves. It would never have worked if it had been imposed on us. In our case, self-government has provided us with the legal and political regime to support matrimonial law development.
We have 23 laws to replace the Indian Act. We control who can own Tsawwassen lands. We control who Tsawwassen members are and what rights they have versus non-members. This requires considerable capacity from our legal regime to our consultative and engagement practices within our communities. We have standing in judicial proceedings because of our community-based jurisdiction. We need to be involved in those processes, and our treaty recognizes that.
I don't want to discourage the committee about the intent of this bill, but I want to stress the importance, in my view, of the whole gamut of first nations governance, which needs to be resolved for any particular bill to work. If we want these things to be more than aspirational, I think we need to think about Indian Act reform or replacement strategically in partnership with first nations who have little time to respond to federal priorities that are imposed on them.
There are likely some first nations that refuse to evolve outside of the Indian Act system, and maybe something more prescriptive will be necessary for those unwilling to meet their citizens' demands for equality and accountability—the Indian Act is a good shield for those and for that inertia—but I don't think a collaborative approach has truly been attempted, and I think that represents a huge missed opportunity.
I haven't said anything about what it takes internally for communities to rise to the challenge to do internal reform. The work is considerable but transformative. This is really what we should be focusing on, giving first nations the tools to solve their own problems and recognizing first nations' inherent jurisdiction, rather than defining and delegating the extent of it. Many first nations are willing to do this and have many ideas on how to achieve this.
The top-down approach on this bill and others like it detracts from an opportunity for transformational and real reform, which almost everyone recognizes and is prepared to admit is required for first nations, especially when you have progressive first nations that want to move down this track. At a minimum, Canada should be supporting and working with this willingness.
Should there be equality for women? Yes. l'm sure this committee has heard innumerable horror stories about how vulnerable some first nations women and children are due to this issue. l appreciate the intent to help some of our most vulnerable members of society. l'm encouraged that the Government of Canada wants to act on some of these issues. l just think there's a better way to approach these incredibly complex issues that have plagued first nations for many generations.
Thank you for listening to my perspective, and thank you for your work.
Hay ch qa.