Evidence of meeting #8 for Indigenous and Northern Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was going.
A recording is available from Parliament.
11:40 a.m.
Conservative
11:40 a.m.
Conservative
11:40 a.m.
Conservative
LaVar Payne Conservative Medicine Hat, AB
Thank you, Chair, and my thanks to the witnesses for coming today.
I was just listening to your comments, Ms. Pierre, and your discussion with regard to the length of time it took for initialling the agreements. Maybe you could lead us through the process of the negotiations for the Sliammon and the Yale treaties. When did it start, and when did it get to the point that documents came to us for initialling?
11:40 a.m.
Chief Commissioner, BC Treaty Commission
It's a six-stage process, so it would have started anywhere after 1993. That is when the commission first started accepting a statement of intent, which is the first step. So a first nation puts forward a statement to say they intend to negotiate a treaty. They describe their people. They describe the land involved in the treaty negotiation. Then they move through a process that's called readiness, and then they move into a framework. The B.C. Treaty Commission determines the readiness of all three parties, and it's something that we're concerned about now. We're stating that because the federal government has not had a mandate on fisheries, were they really ready to start negotiating way back in 1993 or 1994? We determine readiness when all three parties are ready to negotiate.
That's the second part. Then there's a framework. You outline what you're going to be talking about. Then you get into agreement in principle. The majority of the tables that we have in active negotiation are in the agreement in principle stage. I think that's about 27 tables. Some are further ahead than others. There's a whole range of agreements in principle.
You move from agreement in principle into a final agreement, and at the final agreement stage, the chief negotiators shake hands over a deal, it goes back into the system, and then it comes back as a final document that people can initial. All three parties initial. This is what happened to the Sliammon final agreement last Friday. Minister Duncan was there initialling, as was Minister Polak and the first nations.
Once it's initialled, it has to go into the community. So now the Sliammon treaty group has to convince their community that this is a good treaty and the community has to ratify it.
We are very concerned with where the community is at right now, because quite frankly they're pissed off about what has happened in the last 16 months. They thought they had a deal last June, and it has taken this long for it to come back to them for ratification. They have lost a little bit of faith in this. There's not as much trust as there was earlier. The community has to work very hard to bring that trust back, so that when they actually bring it to a vote it passes. You can imagine the situation where after the ministers have initialled you get to a point where the community just says no and they don't pass it. It dies there.
Once it has gone through the ratification--the community has accepted it--then it goes to the provincial legislature and the legislation votes on it, as they've done with Yale, and then it comes here for your vote and your process.
11:45 a.m.
Conservative
11:45 a.m.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
Thanks very much.
Thank you for coming, commissioners.
I'm new here. As you said in your remarks, Commissioner, I've known the social agenda a little bit more than the economic treaty agenda, so bear with me.
Since I arrived at this committee, we've been presented with the James Bay Cree Inuit approach, which seems to be pretty straightforward and has a pretty decent agreement on the shared land. It seems that will be something that will go ahead very quickly and will be expedited, I hope.
But as you can imagine, we have also been visited by the Stó:lo people. I certainly understand that settling treaties is about certainty, about going forward, but it seems the actual reserve-making was arbitrary to begin with in terms of when the crown drew those little tent pegs. We're feeling that strongly with Lake St. Martin right now. They need a new community on higher ground immediately and they don't really care where those original tent pegs were.
Could you explain to me why you as a commission have agreed to the Yale treaty without any carve-out for the overlapping contentious area? It could have been creative. This is the part that would be contentious. What I understand is that this actually may lead to violence, whether it's to highways, railways, hydro lines...this is a very, very contentious area, and with the traditional fishing and hunting in the Fraser, is there a reason why this went forward without the ability to settle this area of overlapping traditional shared territory of fishing and hunting? I think we're all just a bit unclear as to what we have to do, and as you said, Commissioner, if the chiefs will shake hands, then it's done. But if they won't, how can you go forward when both sides aren't in agreement?
11:45 a.m.
Chief Commissioner, BC Treaty Commission
Thank you.
First of all, as a commission, we're called the keeper of the process, so it's our role to ensure that the process that has been formed, the six stages that I described, is being followed and that the negotiations are on a fairly level table—we know it's never going to be a level table--and that those negotiations go forward. It's also our role that when we see problems arising, we bring them to the table's attention. This is what we've been doing all along in terms of overlaps, for everyone, including Yale and Stó:lo, but for all the other tables also.
The treaty process was set up so that when a first nation determines that it wants to get into a treaty, it negotiates with the other two parties and reaches that treaty. As the keeper of the process we cannot determine that one treaty is better than another treaty, that one treaty should go ahead and not the other. The process needs to be fair to everyone, and those overlapping claims are issues that are not going to be determined by the three parties sitting around negotiating--the feds, the province, and the first nation. Those overlapping claims need to be taken out from that particular venue and shared, with the protocol reached amongst the first nations themselves, and then that agreement brought into the treaty. It's that particular part that is a very difficult process. We have made arrangements and tried to set the scenario and give the supports to the first nations so that they can do that, either with us mediating or by bringing in people like Justice Lambert--which we did with the Tsawwassen Cowichan--bringing in people who know how to mediate; it's their livelihood.
We provide that type of support.
11:50 a.m.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
I understand that in this treaty an archeological area has been removed as contentious, but traditional fishing, that five-mile stretch, has not been removed as contentious, when it would indeed be part of a negotiation with other bands.
I want to know how you can settle this one when the other people are pretty upset?
11:50 a.m.
Commissioner, BC Treaty Commission
The reality is that in British Columbia, every nation has overlaps with their neighbours, some more than others and some less than others. This is probably one of the more significant ones, although we have a couple in other parts of British Columbia that we're also working on.
We have never tried to stop a treaty because there's a disagreement between two nations. What we have always tried to do, and we're starting to have success, is go in and help mediate on interest-based mediation—which is what I call it—so that you can deal with the interests of both the nations in the disputed area.
11:50 a.m.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
If one won't come to the table, and if you end up in this situation where the neighbour...where there is unwillingness to cooperate on accepting something as shared, like they did in James Bay just now, and there's the fact that the people who are unhappy will have to be permitted by these people who've refused to negotiate....
11:50 a.m.
Commissioner, BC Treaty Commission
We just got a call two days ago, actually. There are three or four interests in that area. There's the Stó:lo Tribal Council, there's the Stó:lo Nation, and the Yale, of course. On any given day, they may or may not get along, although they're all related and they're all families. We got a phone call from one of the groups. Yale has always said they'd like to sit down and negotiate access to that disputed territory. Now they've moved off the permit issue. The one other nation is not interested at this point in time, and the third one has now phoned us. So we see an opportunity there. If we can have one success between the two, then we'll move forward, probably, with the other one as well.
It's not an easy process. It's like anything else when you have.... It's very emotional in that territory. But is it right to hold up a treaty of the smaller nation because someone else is upset about it? We have never tried to hold up a treaty because of it. We actually allow the treaty process to enable us to find a solution on the disputed territory. If they all know that the treaties are going to move forward, then there's more, eventually, of a willingness to sit down and find that peace between those nations.
If they think they can hold it up by protesting, we will have protests across the province of British Columbia and we'll never get another treaty.
11:50 a.m.
Conservative
The Chair Conservative Chris Warkentin
Thank you very much.
I gave an extra minute and a half to get an answer to that question because I think it's an important one for many people around the table.
11:50 a.m.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
Mr. Chair, if we could later find out whether in the B.C. process there is provision for shared territory, that's the piece I'm not really sure of.
11:50 a.m.
Conservative
The Chair Conservative Chris Warkentin
Thank you.
If that can be supplied through you, we'd be interested in it. If not, we'll get some direction as to whom we might seek that information from.
Thank you.
Mr. Wilks, you have seven minutes.
11:50 a.m.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Thank you.
It's very nice to see Sophie here today from the traditional territory of the Ktunaxa. Kathryn and Scott send their regards.
I have a couple of questions, which I'll quickly get to, Chair.
In your letter introducing the 2011 annual report, you suggest that you need clarity from the federal government as to our mandate and transparency concerning its delivery. Could you elaborate on that and describe how B.C. and first nations mandates are clearer and more transparent than those of Canada?
11:55 a.m.
Chief Commissioner, BC Treaty Commission
Okay.
We're talking about clarity and transparency. I mentioned transparency in my original presentation, that we should know a little bit sooner what is actually going to be on the table. That also applies to British Columbia. As I said, British Columbia puts land on the table and Canada puts cash. We need this to happen a lot sooner than it is happening. As I indicated, we spent years moving commas around, in terms of the language, without knowing what land and what cash we were talking about.
In the case, for example—going back to what we were just discussing a few minutes ago—of Yale and Stó:lo, Stó:lo really didn't know what overlap was going to be on the table until the actual land offer was made to Yale. And then it was accepted. This only happened in the not-too-distant past; it didn't happen back in 1993 when they first entered the process.
They've always known that there was going to be an issue that they had to deal with, because in fact, as I said, it was when the reserve was formed 140 years ago that the problem started, with the Indian reserve and the Indian Act. This treaty process doesn't create that problem; it was there to begin with. We were suggesting and supporting the idea that it be dealt with sooner rather than later. That's the transparency question.
Clarity in mandate is what I was referring to earlier. We need negotiators who know what the devil they're doing and what their mandate is, so that when they shake hands on a deal, the deal is done and doesn't go back into a system in which it is rehashed for months and then comes back.
That's the best answer I can give about having clarity. We need to know that each party has negotiators who are closers and who have the authority to close.
11:55 a.m.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Further to your annual report, you asked for a recommitment to a made-in-B.C. approach to treaty negotiations.
Can you describe that approach for us, highlighting some of the reasons why negotiations in B.C. should be distinctive?
11:55 a.m.
Chief Commissioner, BC Treaty Commission
First and foremost, it's because the rest of Canada pretty much—90% of the rest of Canada—has the historical treaties. We don't have that situation in B.C., other than for that little piece around Victoria on Vancouver Island, the Douglas treaties, and then the little piece of Treaty 8 that comes in on the north. Other than that, there's no certainty; we've never had treaties in British Columbia. We need to deal with this separately because we don't have those historical treaties.
There is a comprehensive claims process that happens across the country. It's a mix of all the claims, whether involving the interpretation of historical claims or new claims. What we're saying is that rather than be part of that mix—obviously, British Columbia was a part of the comprehensive claims prior to 1992—we could see that if we stayed with comprehensive claims it was going to be 600 years before we got any kind of certainty in British Columbia. So we said, let's make it easier on everybody and make it easier on ourselves, carve out the situation in British Columbia because it is unique, form a made-in-B.C. treaty process, and get on with the business in order to have all these treaties signed by the year 2000. Here we are 11 years later, and we still only have two.
11:55 a.m.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Lastly, I've certainly sat in your area and watched the Ktunaxa as they move forward as well. I look forward to the day that happens.
Noon
Conservative
David Wilks Conservative Kootenay—Columbia, BC
There have been some great advances with St. Eugene and such.
Noon
Conservative
David Wilks Conservative Kootenay—Columbia, BC
I wonder if you could expound a little bit on your personal views, as you looked at the Ktunaxa, on how that process has proceeded and how you feel about that.
