Indigenous and Northern Affairs Committee on Dec. 7th, 2006

[The Chair, Conservative, Colin Mayes]

I open the Thursday, December 7, 2006, meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Committee members, you have the orders of the day before you. This morning, in the first hour, we will be dealing with the B.C. treaty process. The witness is Robert Morales, chief negotiator from the Hul'qumi'num Treaty Group. In the second portion of this meeting we'll be continuing discussions around the circumstances faced by the Pikangikum First Nation.

Welcome to the committee, Mr. Morales. Thank you very much for the fact that you were here in Ottawa. It worked out great for us to be able to hear this presentation. What we will do is let you speak for ten minutes or so, and then we'll be asking the committee members to ask you questions.

[Robert Morales, Chief Negotiator, Hul'qumi'um Treaty Group]

Thank you, Mr. Chair.

Good morning, honourable committee members. It's a pleasure to be able to appear before you this morning to share some information with regard to the British Columbia treaty process. As was mentioned, I am the chief negotiator for six first nations on Vancouver Island, the Hul'qumi'num Treaty Group, in which we have about 6,000 members. I'm also the chair for the summit chief negotiators' forum, which is the forum for all of the first nations chief negotiators in British Columbia.

I want to spend a few minutes this morning talking a bit about the treaty process and the recent Auditor General's report that was just put out by Ms. Sheila Fraser on behalf of Canada. The British Columbia Auditor General has also produced a report, so there are two reports that are quite recent with regard to the treaty negotiations that are currently going on in British Columbia.

I want to start by making a few comments about what I've termed here the history of racism and denial policies. I want to first read a quote from Duncan Campbell Scott, who appeared before a special committee of the House in 1920. He made the following comments:

I want to get rid of the Indian problem. I do not think as a matter of fact, that the country ought to continuously protect a class of people who are able to stand alone....

Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, that is the whole object of this Bill.

I will read another quote with regard to the definition of genocide. It says:

Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and...personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.

The Auditor General of Canada, in the report that was published, made the following comments with regard to the treaty process in B.C. At paragraph 7.27, she states:

There are fundamental differences in views between many First Nations in the B.C. treaty process and the federal government. For example, the federal government does not recognize Aboriginal rights unless they are proven in court. B.C. First Nations consider that Aboriginal rights and title should be acknowledged before negotiations begin. At some negotiation tables, First Nations believe that they are owed compensation for past denial of their rights. The federal government considers that there is no basis to establish such compensation since negotiations are not based on rights. Another critical difference is the federal government's expectation that a treaty constitutes full and final settlement with respect to the Aboriginal rights and title claimed by a First Nation, while many First Nations see treaties as evolving documents recognizing their rights and title.

At paragraph 7.24, she states:

...there are indications that the failure to deliver treaties, limited interim benefits, and the relatively slow pace of negotiations are actually straining the relations between government and First Nations.

At paragraph 7.52 of the report, she recommends that the government “develop a more expeditious and coordinated process for ongoing policy development and review....”

Then she observes at paragraph 7.60:

...treaty negotiations are one of the most controlled and inflexible processes in the federal government, involving approximately 40 departments and agencies, including central agencies, and a coordination structure to measure different levels of approvals.

And I think this is probably the key sentence from the whole report:

Other officials observed that this process is structured as if the main risk faced by the federal government in treaty negotiations is that of deviating from existing mandates, rather than that of not signing treaties.

I have a written presentation that I'll leave with the clerk to translate, because it's too long to give in ten minutes.

One of the duties that we would say the Crown holds is to negotiate in good faith. To come to the treaty tables with predetermined outcomes and predetermined conditions that are inflexible really puts into question the whole issue of good faith in these negotiations. The experience we're having at our negotiating tables is that at some point all treaty tables will hit a point where they are faced with what seem to be inflexible positions on key aspects of the treaties. As we have met as chief negotiators in British Columbia, we have identified six areas where we see there are considerable gaps between the vision that government brings to the table and the vision that first nations bring to the table. Each table has attempted to negotiate its vision of the treaty at its individual table, and at this point, on those six issues, there has been no significant movement by government.

When we raise them at our individual tables, we are told that they are high-level policy issues. As chair for the chief negotiators' forum, I am also able to sit with the principals, including the Minister of Indian Affairs; the British Columbia Minister of Aboriginal Relations and Reconciliation; the Summit Task Group, which is the political leadership for the first nations; and the British Columbia Treaty Commission. At that table, I've heard it stated by previous ministers that it is not a negotiating table and that these issues therefore have to be dealt with at the individual tables. So we get caught in that cycle. At the individual tables, it's a high-level policy issue, but it's a negotiation issue when you get to that table, so it becomes very difficult to try to find ways to achieve movement on these significant differences of vision and approach or desired outcome within the treaty process.

Recently, 46 nations at 14 treaty tables signed on to a protocol. We represent approximately 22,790 first nations members. The protocol signifies our commitment to working together to find solutions to the significant gaps between government and first nations visions and mandates. The purpose for establishing the protocol is a call to establish a joint policy table, a forum where we can actually begin to address these issues. We have called upon the Prime Minister, the premier, and the two ministers to support us in wanting to have a policy table established, where we can actually get into a dialogue, a discussion, a debate about these key issues, to see if we can find a way to break the impasses and the barriers that currently are there.

I want to quickly go through the six areas. The first one is certainty. The government comes to the table saying that in order to conclude a treaty, first nations must modify their aboriginal rights into treaty rights and agree not to exercise or assert rights not contained within the four corners of the agreement. The question is, why? Why is that the only alternative?

On the issue of the constitutional status of lands, the government comes to the table saying that in order to conclude a treaty, first nations must modify their aboriginal title into fee simple lands. Again the question is, why is that the only option?

On the issue of co-management, the government comes to the table saying that in order to conclude a treaty, first nations must extinguish their jurisdiction over their traditional territory, thereby relinquishing any right to consultation for decisions that do not directly affect their treaty rights. Again the question is, why?

On the issue of governance, the government comes to the table saying that in order to conclude a treaty, first nations must accept what is referred to as the concurrent law model. The question again is, why is that the only option?

In terms of fiscal relations and taxation, the government comes to the table saying that in order to conclude a treaty, first nations must agree to the federal government clawing back transfer dollars for social programs if the first nation generates own-source revenue. The first nations must also agree to relinquish their tax exemption as a pre-condition to entering into a treaty. Why is that?

Lastly, with regard to the fishery, the government comes to the table saying that in order to conclude a treaty, first nations must agree to an allocation of fish for food, social, and ceremonial needs, an allocation that is based on the existing aboriginal fishing strategy numbers, which are generally inadequate. The government also says the minister will be the ultimate decision-making authority, which leaves little room for real first nations participation in decision-making. The government says it will not negotiate a right to a moderate livelihood or a recognition of the right to sell within the treaty. Again, why is that?

We are calling for an opportunity, and we hope we are able to engage in a process, in which we can begin to really examine the legal and the social policy underpinnings for the positions that are being brought to the table, particularly by federal negotiators but also by provincial negotiators. We're told that those negotiators do not have a mandate to engage in policy dialogue, to negotiate policy issues, and that those are either driven by cabinet or driven by senior officials in government. We need to find a way to resolve that in order to make progress and in order to address the issues that are raised by the Auditor General in her report.

Again, the first recommendation she makes is that government needs to develop a more expeditious and coordinated process for ongoing policy development and review. That, I believe, is key to making progress in the treaty-making process that's currently under way in British Columbia, recognizing, of course—I'm sure everyone has probably read the news—that there are three first nations that are initialling off on final agreements. Those are generally small nations that have made a decision to accept and move forward with the current mandates, but, as I said, the tables that have signed on to the protocol have all indicated that they are not prepared to proceed on the basis of the existing mandates.

That about takes care of my ten minutes, Mr. Chair. Thank you very much.

[The Chair, Conservative, Colin Mayes]

Thank you.

We'll go to Mr. Merasty, please, for seven minutes.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

Well, as a former chief, as a person involved in self-government negotiations, land claim negotiations, and understanding from that perspective the nation-to-nation relationship, the Supreme Court, the battles that first nations and Métis have had to establish nationhood, leading to engaging in these discussions between the government and the nations--the first nations, Métis nations, the Inuit nations--I'm angry to hear about extinguishment; fee-simple; non-respect of aboriginal law; being penalized for own-source revenues; having taxation exemption removed, under all conditions, it sounds like; respecting only ceremonial needs when it comes to harvesting resources for food; and the minister retaining ultimate decision-making. That's not negotiation. This is assimilation.

I don't even know what question to ask Mr. Morales. I cannot believe that this is the mandate that has been handed down. I can see a revolt happening across this country. I'm totally and completely baffled, because this goes against thirty years of Federal Court, provincial court, Supreme Court decisions that outline what courteous negotiations between these groups should entail.

My only question, I guess, is why do you think this is happening? I can't even think of any other question that's nicer than that.

[Robert Morales]

Thank you for that question.

Ms. Fraser does identify the exact issue you are raising, that in terms of response to case law and the decisions of the Supreme Court of Canada, the Government of Canada is very slow in implementing those cases, and that is an issue that needs to be addressed in terms of the comprehensive claims policy, and I guess the policies of the Government of Canada particularly.

Why? Again, I believe it's based in the denial policies. In British Columbia there has been that history of denial, denial that aboriginal title exists, and there's been a huge need for first nations to litigate that issue, to even establish that aboriginal title continues to exist. I think it is perhaps a product of systemic discrimination. I'm not sure why. I mean, that's a good question.

How can we overcome it? That's really what we're trying to accomplish.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

To me, it seems it's not a mandate; it's a set of final terms of an agreement.

I know we want to avoid at all costs conflict of laws when we negotiate these issues, whether they're municipal, federal, or provincial laws, or first nation, aboriginal laws. On OSR, own-source revenues, whether it be through natural resource development, taxation authority, or other, I'm just baffled by this mandate, which seems like a final agreement to me.

What has been the feedback from the majority of negotiators—and we're all baffled here—across the country with this mandate? I know we met a few of them at your gathering the other night. Is there a collective, “What's going on here?” Are there brakes being applied? Is there a thought more nationally on this, from across the country?

[Robert Morales]

I've had some communications with the Mi'kmaq in terms of the negotiations currently ongoing on the east coast. They're very interested in the unity protocol; they just recently heard about it. I came out to Ottawa and met with some officials from the Department of Fisheries and Oceans I think who indicated they're engaged with the Mi'kmaq in a process that is a response, I understand, to the Marshall decision, and a discussion without prejudice, leading to some recommendations that would go to cabinet. At least, in that kind of a process, first nations are involved even in the development of the mandate policies that are coming down for negotiation.

Perhaps that might be something we would encourage, or a possible way to make some progress as to how to get first nations voices heard as we try to find solutions and a resolution to some very significant issues.

These negotiations are very much based in British Columbia; they have been very much I think a British Columbia approach. We've seen on these particular issues that there have been other approaches taken in other regions of the country. But in British Columbia, the experience we're having is that the tables are being presented with predetermined wording; the clauses are being brought to the tables, and it is said, “This is the position and we cannot deviate from it.”

[The Chair, Conservative, Colin Mayes]

Mr. Lemay or Mr. Lévesque.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

That will be me, Mr. Chairman.

Mr. Morales, I'm so pleased to be meeting with someone who isn't simply handing us a report, or information, or a message from a committee. You are, and have been, truly involved in negotiations and you have experience in negotiating with this extraordinary machine called the federal government. I have one or two comments.

If you think you have problems in British Columbia, then try to image what has been happening with the Mohawks in Quebec. There was the Oka crisis in 1990, which resulted in the Erasmus-Dussault report, that celebrated its 10^th anniversary a few weeks ago and that led nowhere. Try to imagine what has been happening with the Lubicon Lake Crees in northern Alberta. I think the minister knows what I'm talking about. Try to imagine what has been happening with the Six Nations in Caledonia. If you'd like to hear more I can continue until 10:20.

I have a specific question. The Liberals used to be in power; now the Conservatives are, and both parties tell us that our party will never be in power. They can say what they will, but within a minority government, we have the power. My question to you is very specific: What can we do? It seems to me—and I have been involved in these kinds of cases—that the federal government is both judge and jury, that is, that the government is the one deciding when negotiations will take place, how those negotiations will unfold, with whom the negotiations will be carried out, and on what terms. What can we do to help you? Is there something concrete we can do, a decision or a recommendation we can make? That is my first question.

Under this new good government that says it will solve all these problems, has the situation improved or has nothing changed?

I'm not talking about the Quebec nation, which is a step forward, but rather of the first nations. That is quite a different matter.

Do you see, Mr. Morales? I'll give you the rest of my time to answer.

[Robert Morales]

Thank you for the question.

What can you do? We had a delegation come to our territory, and I believe they were individuals who were going to be serving as ambassadors or foreign diplomats. I can't recall their exact titles, but there was someone from Quebec in the group who, after we explained what's going on in British Columbia, made the observation that, “Well, we've never heard of this; we didn't even know this existed. We didn't know there was an issue like this.” He said these kinds of issues never make the press in Ottawa; no one is aware of what's going on.

So awareness of the issues is one thing that we can try to do, and perhaps establish a better communication system with you, so that you're aware and can make others aware of the current situation. Having a good understanding of each other and making better relationships is one thing.

At this time in the history of Canada, whether or not there's going to be a change to the current minority government situation—it's hard to tell—I certainly think that all parties can help move the current policy of denial and refusing to recognize the rights of first nations people. Are things going better or are they the same?

I'm a member of the Cowichan, which is one of the communities I negotiate for. A community well-being index was done in British Columbia, and I think over 400 communities were surveyed. The communities I represent were at the very bottom of those 400 communities.

I think you indicated earlier that you had been to Whistler. It was ranked number one in the province, as the best community in which to live in the province, while our communities are down in the 400-and-some category.

So are things going better? I don't believe they are going better. I think the social and economic situation of our communities is still basically the same, and the rates of unemployment and poverty—the rates of all of the indicators on the socio-economic scale—would indicate that things are not improving.

How do they improve?

[The Chair, Conservative, Colin Mayes]

Mr. Morales, please wrap up a bit, because we have our next witness.

[Robert Morales]

Thank you.

How do we improve this? Certainly one of the things we're saying is that we need to establish this new relationship with government through the treaty process.

Thank you, Mr. Chair.

[The Chair, Conservative, Colin Mayes]

Madam Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

I want to thank you for travelling here. I think it's really important that committee members get to hear that things are different in this country from coast to coast to coast, and British Columbia has its own unique set of circumstances. Of course, I'm from British Columbia, so I have a bird's-eye view of that.

I want to start by saying that not only are there challenges in the treaty process, but also in the implementation, as we've seen with the Nunavut Tunngavik this week launching a lawsuit against the Government of Canada for breach of contract because of the lack of implementation that's happening in Nunavut. So not only do we have challenges in the treaty process, but we also have challenges in implementation.

I want to echo Mr. Merasty's anger, actually. As many of us have become more and more involved and have had a closer look at what's going on in this country, it is shameful that we are having to have this conversation today.

Rather than deal with some of the bigger picture, I'm actually going to deal with three specific elements in the Auditor General's report. I'll list them, and then I'd like you to respond to them.

One is in paragraph 7.47, which is talking about land. Of course, land in British Columbia, particularly for some nations.... I fail to understand why Indian and Northern Affairs does not have priority around surplus federal lands so that they're on the table for people when they're trying to negotiate treaties.

The second piece I want to deal with is in paragraph 7.5, around the duty to consult. We've had many court decisions. The Auditor General specifically cites Sparrow and Delgamuukw, but she goes on to say that although work has started in the federal government, it really has no formal mechanism in place on the duty to consult. It seems to me, no matter what the policy is, unless there is a fundamental commitment to consult on a nation-to-nation basis, we're going to continue to have these conversations.

I'd like you to comment on that.

And the third piece I'd like you to comment on is paragraph 7.73, around loans. Many first nations in British Columbia are eating away at their ability to function as a nation once a treaty is signed because of the fact that they're having to borrow substantial amounts of money. In fact, my understanding is that the way the agreement is structured right now, interest is not being paid at this point in time, but that deadline is looming where people will have to begin to pay interest.

I wonder if you could comment on those three items.

[Robert Morales]

Thank you, Ms. Crowder.

Dealing with your first question with regard to land, which is contained in the Auditor General's report at 7.47, the issue of surplus federal crown lands is perhaps not as large a question in British Columbia as in other regions of the country. There is not the significant amount of federal crown land. The crown land in British Columbia is primarily provincial crown lands, but small pieces of federal crown land currently exist. I believe the federal government has a list of priorities and that land for treaty negotiations falls onto that list. They're not at the top of the list, I know that, but as surplus crown lands are available, there is an opportunity to have those become part of an overall treaty deal.

Perhaps the more difficult question is being able to hold onto those lands while the negotiations grind along. We're 13 or 14 years into the process and we don't have an inch of land yet; we don't have any substantial improvement in social and economic conditions. So these interim measures the Auditor General speaks to are important, and land could be one of those issues. It seems to be a bargaining chip that we're not prepared to turn over any land to first nations until you agree to all these other issues. Until you agree to fee simple, until you agree to a concurrent law model, until you agree to all these things, we are not prepared to turn over one square inch of land to first nations. So it creates what we say is a very potentially hostile negotiating environment.

On the issue of the duty to consult, the federal government has not yet developed a policy in response to Haida. I think it's been two years since Haida came down. They do not have an official consultation process in place, which makes it difficult, because you really don't know the rules of the game in the consultation process. So we're trying to respond to decisions that are being made. Decisions continue to be made in spite of the fact there is no consultative process. Again, the Auditor General calls upon this, her second recommendation, that a consultation and accommodation policy be developed.

In terms of the issue of loans, the first nations are borrowing money to participate in the negotiations. Certainly, it's an issue that many of the community members question. Why do we have to borrow money to participate in this process, money that will come out of the eventual settlement? As these negotiations go on for protracted periods of time, the loans continue to mount. The pressure continues to mount, because at some point smaller nations may end up owing money at the end of this process. So it's a difficult one to work your way through. If one or two parties come with positions that are not negotiable, what are your options? Your options are either to get in and accept what's there or you continue with the process that grinds along and loans continue to escalate. It becomes an untenable situation.

What is going to happen once the time period for repayment of the loans expires? We don't know. We're not sure. We recently heard that may be the situation for one first nation, but it hasn't been confirmed yet. So I don't think it's going to happen.

Thank you.

[The Chair, Conservative, Colin Mayes]

You're out of time for answering questions.

Mr. Bruinooge, the chair would like to make a comment.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Sure. Whatever

[The Chair, Conservative, Colin Mayes]

I was advised by the analysts that this is the first time we've had a discussion at this standing committee, not only this one but previous ones, on this issue of B.C. treaties. So thank you very much for being here.

I think what you're talking about is policy, and maybe even a suggestion that there be a statutory framework to know the position of the government.

The only concern is I'm getting the feeling that there's a victim mentality. Really, the Government of Canada represents the people of Canada. I think I disagree. I'm from British Columbia, and I have worked for the Adams Lake Band. I'm very close to a lot of their leadership. I believe that Canadians have the intent to see this resolved.

One also has to recognize that when the Government of Canada comes to the table to negotiate, they're representing the entitlement and interests of the second nation in this country. There needs to be a recognition of that.

I've had experience with that. The Government of Canada passed a law allowing taxation on reserve lands within a municipality, yet they never consulted with the people in the municipality--the local government. In the community I was mayor of, all of a sudden the first nations Adams Lake Band took about $360,000 out of our tax base. Our citizens were paying for the service delivery, because that's what taxes are all about. They were disenfranchised by the passing of that law. That was an experience.

When negotiators come to the table, that's why they have to look at the interests of Canadians and first nations. It's about compromise and what is fair and equitable to all people. I believe the Government of Canada, on all sides, wants to resolve this in the best interests of the country and the first nations people.

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thanks, Mr. Chair.

Mr. Morales, thanks for bringing your views to the committee. It's interesting to hear. This committee hasn't had the opportunity to hear from a negotiator such as you in relation to the B.C. treaty process. I'd like to commend the member from Cowichan for recommending that we have this discussion.

My questioning would be more along the lines of getting to further understand your perspective on how a negotiation should occur. How would you propose that the people you represent and the Government of Canada negotiate?

[Robert Morales]

I suspect negotiation would mean there is room to move on both sides. If there's no room to move, then I don't think it's negotiation. That is simply the bottom line. If we come to the table with our bottom line, then there is no opportunity to negotiate. So how do we do that?

The policies of government, yes, do have to take into account all Canadians, but is it something that's created in isolation without any participation of the first nations? How should negotiations occur? If the government says, and I suspect this is the case, that we cannot negotiate 47 different approaches in British Columbia to this particular issue--it's impossible to do that--then we're saying from our side of the table that we cannot live with “one size fits all”.

“Fee simple is the only option you have; there is no other option to how you're going to hold your land after treaty.” Somewhere between those two extremes we have to find the middle ground. I think that's what we're saying.

It cannot be that these negotiations become simply a take it or leave it position. We've heard that at our table. One of our chiefs was asking some questions, and the negotiator for Canada said this is a voluntary process. That's not really a negotiation. I think there needs to be some room to negotiate.

Yes, we might be able to negotiate around the fringes of certain issues, but when you get to the heart of the issue, there's a predetermined outcome. The language is already crafted. It's, “Here you go. Do you accept it?” That's the feeling, and that's the experience we're having.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Don't you believe that you can take positions on the negotiation and have an impact on the actual discussion?

[Robert Morales]

We take positions. I don't know whether they're having an impact on the discussion, because the negotiators are not mandated to do that, and that's the problem. The problem is that the negotiators come to the table with their predetermined mandates, the outcomes, the marching orders: “This is what we're trying to accomplish.” So whenever you get that in the environment, how do you deal with it?

I think that's the challenge we're having--we need to have that.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Are you saying that in the amount of time the recent negotiations have been occurring...? How are they different now from, say, the last thirteen to twenty years?

[Robert Morales]

The treaty process in B.C. has been ongoing for thirteen years. I believe we are now to the point where most first nations are reaching that wall. It's taken time to get to that point, to where we're all facing the same language, the same positions, the same mandates. So now we've gotten to that point. We're now hitting the hard issues.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I believe the number that was quoted as having been invested into the negotiations was something like three-quarters of a billion dollars. Is that correct?