Aboriginal Affairs - Issue No. 4 - Wednesday, September 26, 2001

2001 Legislative Session: 2nd Session, 37th Parliament
SELECT STANDING COMMITTEE ON ABORIGINAL AFFAIRS
MINUTES AND HANSARD

Present: John Les, MLA (Chair); Val Anderson, MLA; Bill Belsey, MLA; Dave Chutter, MLA; Mike Hunter, MLA; Blair Lekstrom, MLA; Dennis MacKay, MLA; Gillian Trumper, MLA; Rod Visser, MLA

Unavoidably Absent: Paul Nettleton, MLA (Deputy Chair)

1. The Chair called the Committee to order at 11:04 a.m.

2. The following witnesses appeared before the Committee and answered questions:

3. The Committee recessed from 12:10 to 12:35 p.m.

4. The following witnesses appeared before the Committee and answered questions:

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE
ON ABORIGINAL AFFAIRS



CONTENTS

		Page

Expert Witness Briefings		55
	Dr. Will Johnston	55
	John Weston	55
	Dr. Ehor Boyanowsky	56
	Dr. Paul Tennant	63
	Gordon Gibson	72
	Phillip Eidsvik	82

Chair:	* John Les (Chilliwack-Sumas L)
Deputy Chair:	Paul Nettleton (Prince George–Omineca L)
Members:	* Val Anderson (Vancouver-Langara L) * Bill Belsey (North Coast L) * Dave Chutter (Yale-Lillooet L) * Mike Hunter (Nanaimo L) * Blair Lekstrom (Peace River South L) * Dennis MacKay (Bulkley Valley–Stikine L) * Gillian Trumper (Alberni-Qualicum L) * Rod Visser (North Island L) * denotes member present

Witnesses:

Dr. Will Johnston (CANFREE)
John Weston (CANFREE)
Dr. Ehor Boyanowsky (CANFREE)
Dr. Paul Tennant
Gordon Gibson
Phillip Eidsvik (B.C. Fisheries Survival Coalition)

J. Les (Chair): Good morning, everyone. We'll get this meeting underway. Thanks, everyone, for making time today to have this meeting. We have a number of presenters, starting with the CANFREE organization. We have representing them this morning Dr. Will Johnston and Mr. John Weston, who are at the end of the table. Over to you, gentlemen.

We've got a couple of administrative things to go over for our travels next week. Perhaps I'll wait until the first presentation is done. I see there's a couple of committee members not here at the moment. I'm assuming they will be arriving later. I'm also aware that at approximately 11:30 one or two committee members might have to slip away briefly for another meeting. To remind everyone, of course all of the proceedings of the committee are being recorded verbatim. So if you miss anything, be sure to check back with Hansard for any of those items that you might have missed.

W. Johnston: Ladies and gentleman of the committee, thank you again for the honour of being able to present to you today. I am a family physician in Vancouver, and my interest in seeing that we stayed on the right track with settlements was largely sparked by a chance comment by a patient a few years ago, who came in and proudly announced that she had just discovered that she was 1/16 Tsimshian. She said to me: "I'm just looking into the information about all the free things that I should be able to get now." I thought she was perhaps being a little unrealistic in her expectations, but it began to interest me that we were in an age when DNA analysis can tell us soon enough whether we're 1/16 this or 1/8 that. Was this really the kind of future we wanted to launch our province toward, a future in which proportions of racial DNA content would determine rights and obligations?

I was more than interested when my friend, John Weston, founded CANFREE, and I would like to call on him for a few summary comments about the origin of the organization and its purposes. I believe you've been handed a list of the seven founding principles of the organization.

J. Weston: Thank you, ladies and gentleman of the committee. I'm a constitutional and international lawyer. My interest in these things began back in 1979 when Rafe Mair had hired me to work for Mel Smith, who many people said was the doyen of constitutional matters in the country. He was the longest-running deputy minister in the province and won respect from coast to coast for his very in-depth analysis of bringing constitutional matters, in a very simple way, to people — whether it be a Premier that he served or members of the public.

When I returned in '97 from ten years living abroad in Asia, I returned to read about the Nisga'a treaty and, in consort with Mr. Smith, started looking at things that I found very disturbing in terms of the effect on the constitution. The constitution has been called the central nervous system of our country, and it is the senior law of the country. There are aspects of the treaty — which are to be replicated in treaties to come, if the treaty negotiators have their way — that would truly rend asunder our country and its constitution.

When I started discussing this with several friends, we formed what was essentially a think tank. It's called Canadians for Reconciliation, Equality and Equity, and it began as a series of monthly meetings — people just concerned about these issues, trying to learn about what was essentially a very difficult, dense treaty and what it meant for Canadians. We found that people were reserved in discussing the issues because they had racial implications. We found that people didn't want to go near the issues because they were so complicated. We felt that several of our friends believed it was not in their back yard, and therefore it wasn't something that really affected them. More and more people have come to the realization that the principles in that treaty, whether or not they are replicated throughout other treaties, have great import for all Canadians.

Our group felt that we had performed our task when we published several articles in the National Post and had sponsored several municipal referenda on Nisga'a treaty–related issues. We were unequivocally in favour of treaties, of reconciliation, of equality, but we felt that issues in that treaty, which went beyond the powers of the provincial and federal legislatures, were considerably damaging to the country.

Then we were approached by a group of natives, Nisga'a people, to support them in their challenge of the treaty. In fact, I've had the honour of acting for 250 Nisga'a people who've been challenging the treaty on the same grounds that were raised by Geoff Plant, Gordon Campbell and Michael de Jong in the challenge to the treaty that was so recently abandoned by the Attorney General due to, in his words, the fact that he could not sue himself. Our challenge brought exactly the same issues to bear, plus other aboriginal common-law issues.

I must say that although it's a great honour to be here this morning, I am disturbed by the fact that the Attorney General supported the application to strike out the statement of claim of this group of people. We were in court yesterday, and a judge in fact granted an order to strike out sections of the statement of claim. In my honest assessment, it's somewhat unconstructive to, on the one hand, be conducting important discussions like this and yet be supporting motions to strike out important constitutional arguments that may now not be able to come before the courts of this land. So there is an introduction with a slightly bitter twist, and I regret that.

W. Johnston: May I pause to ask if it would be acceptable to have the founding principles of CANFREE read into the minutes? You've received them on a handout.

W. Johnston: If we could have that appear on the record, that would be gratifying.

I'd like to introduce Ehor Boyanowsky, who's had a wide range of contact with treaty settlement issues and who I will leave to further introduce himself. He will lead off with our first, we hope, constructive contributions to the question of whether a referendum can move this troublesome area forward.

E. Boyanowsky: Mr. Chairman and members of the committee, I'm very pleased to be here, and I highly commend the government for engaging in this process.

I come to this situation wearing a couple of hats. When I came to British Columbia, I got involved in the conservation of wild fish and wild rivers as a way to pay my dues for living in this beautiful part of the country, through the Steelhead Society, and I was president when the third-party advisory committee was formed. At that time, I spoke to it.

Based on my other hat, which is as an academic — a social psychologist working in the school of criminology and studying violence, aggression and interethnic violence, and the causes of it — I urged the organization at that time to redress past injustices, to reach settlement of land claims, but to think ahead in terms of the kind of country we would like — that is, to avoid any enclaves based purely on ethnicity which would provoke any kind of anger or concern regarding individuals who at one time, perhaps, were members of an underclass but suddenly had been crowned to become members of a very special class. It's the same process that occurred 1,000 years ago in Scotland, where part of my family comes from, where you had a bunch of chiefs, for example, who pledged allegiance to Malcolm Canmore. They, being on the winning side, were granted large sections of land. Their immediate families, whether their names were similar or not, were those who benefited.

For the rest, of course, we know the diaspora of Scotland and what occurred. Two things occurred. More Scots than any other part of the United Kingdom fled, because they couldn't be part of that process. Those who stayed behind formed very strong unions and a class struggle, because they never felt that they really could, in any other way, have any sort of say in what was going on. Today 800 people own all of Scotland.

My studies of other parts of the world have indicated that any kind of perception of privilege or exclusion, whether…. One sad case that I've had my students studying, of course, is in Rwanda, where the Hutus and the Tutsis got along very well, except colonial governments favoured the minority Tutsis, and the Hutus used that as a provocation.

You may argue that I'm oversimplifying or being alarmist; nevertheless, do remember that it is my job as an academic to step back and look at the templates we are creating, the structures we are creating, which promote different kinds of relations between people. We know what happened there when leaders of the Hutus used those kinds of exclusions and privileges as a basis for promoting violence and conflict against the Tutsis. So, too, this has happened over and over again wherever we've looked — all the way from Israel which, with all the best intentions and the horror the Holocaust created, displaced many hundreds of thousands of Palestinians. To this day I think we are still experiencing the legacy of that very well-intended issue. In my personal opinion, it will require restructuring before it is solved. It is now, in fact, affecting the rest of the world.

You may think that I'm overstating this case, but as we go through the world and history and experience these kinds of issues and these kinds of distinctions, wherein sociobiologically it is the tendency of individuals when a superordinate organization breaks down — whether it is the Soviet Union, Catholicism or any sort of organization where egalitarianism tries to subordinate ethnic difference…. Whenever anything like that breaks down, we immediately fall apart and go back to our genealogical kinds of connections — xenophobia is based on who we're most closely related to — and bring up old arguments, issues and things that have troubled us for generations and generations.

As a member of the B.C. Steelhead Society, I've been involved in conservation and have worked with aboriginal peoples. One of the things I've discovered since becoming an owner of ranch property in the interior, where I trade off grazing rights with my aboriginal neighbours, etc., and we work out all kinds of things very nicely…. What I've learned is that one of their major complaints is that they cannot be part of a harmonized economy. I do not believe that the Nisga'a treaty, for example, will lead to a harmonized economy. I think we are casting in aspic a group of individuals because they claim, and I believe it is heartfelt, that they have this special relationship with the land. My forefathers were Ukrainian. They had a special relationship with the land. People everywhere have a special relationship with the land. I think that in order for that land to work for you — as Bob Pasco, chief of the Oregon Jack Creek band has told me — it has to serve as collateral. If it doesn't, it is very difficult to then proceed. This is from a very hard-working individual with a background in chemistry and rodeo riding who's been very successful but found it very difficult.

In my discussions with aboriginal people, the treaty process, the millions and millions of dollars — I don't know what the latest figure is; I heard it the other day as a member, now, of the Treaty Negotiation Advisory Committee — without a single treaty having being settled in it, is a source of frustration for aboriginal people. It's money that they would have liked to see going into a pot for settlements. The Hon. Geoff Plant

said to me: "Well, we do have Delgamuukw, and we have these other decisions. There are special aboriginal rights." Of course. That's the basis for settling land claims.

I was a keynote speaker at the Stó:lo nation Delgamuukw conference, and I made the same pitch there: if we are going to settle, we have to settle on the basis of the municipal government protecting the same residency rights that we have anywhere else in Canada and especially in British Columbia. But there is an alternate approach to deal with these issues, and that is: instead of allowing an oligarchy of chiefs and bureaucrats to have access to most of the resources that land claims would allow, why not have a referendum with aboriginal people in addition to a referendum with non-aboriginal people, laying out that an alternate might be individual settlements, municipalities based on residency and geography, and the actual reality of mixed marriages? I think this is the ultimate solution to human affairs. It certainly has been the way kings have dealt with conflict in the past, and I hope it will ultimately lead to resolution here.

To avoid being called racist or against land claims or anything else, I think that if we had a referendum with aboriginal people, asking them what kind of settlement they would agree upon as an alternative to this long, protracted, costly and unsuccessful treaty process, we would be surprised — in fact, pleased — to find out that they would like to get on with it: receive money, land and resources for helping them develop the kinds of infrastructures that are not exclusive, which would lead to prosperity for all and leave us with a British Columbia where my children and yours will not feel excluded and will not feel growing resentment.

W. Johnston: In adding to Ehor's comments, I'm sure it hasn't escaped the attention of the committee that municipal governmental–type powers are sufficient to govern even the largest cities in Canada. Yet when changes must be made, when circumstances change and powers need to be adjusted, there is the safety valve that higher levels of government are there to restructure, to give new powers and take away powers where they're inappropriate.

As we know, many square kilometres of British Columbia, through the Nisga'a deal, are no longer available for that sort of modification in the future, unless it is with the full cooperation of an interest group which can easily stand in the way of that modification. So we are concerned that if municipal powers are adequate to govern millions of people elsewhere in the country and in fact are adequate to govern every structure from the tiniest municipality to the largest city, there is no necessity to go beyond these powers if the quest of the new structure is simply peace, order and good government.

We believe that a referendum needs to be preceded by intelligent public comment and controversy about different styles of government. But in the end, in order to proceed with an authentic mandate, there needs to be a referendum referenced in some way to the question of whether municipal powers will be exceeded. I do not have the exact wording of that question for you today, but I know that a lot of careful thought will be going into whatever questions are chosen in the future. I'm confident that that could be placed before the people of this province.

In addition, I would like to reiterate that we would like to see more referendum activity and more direct questing into the interests of individual aboriginals. The grass roots need to be questioned closely as to what government structures would best suit their aspirations and convictions.

We have seen the effect that the perpetuation of racial entitlements has on other societies. Certainly, one of the comments I made in one of the handouts is that we have to be careful lest genuine and in fact admirable cultural pride is detached from the culture and simply attaches onto racial privilege, power and money. My own European heritage is full of tragic examples where racial privileges of power and money were held onto, and it did not serve the European societal structure well. We are still paying, in effect, for the vestiges of slavery. We have seen this as a cultural dead end and as in no way ennobling a society. Why we would want to visit a perpetual racial heritage on any small governmental entity that we help to set up anywhere in this country is open to question. I think it was no good for us that we were racists in the past; it will be no good for us to perpetuate any kind of racism in the future.

J. Weston: Let me interrupt. May I ask the committee a question? We've given you some background on views. You don't want us to actually provide specific referendum questions, but you would like us to speak to themes that, in our humble views, should be represented in a referendum. Is that…?

J. Les (Chair): Let me say, tongue in cheek, that if you had the questions, we'd gratefully receive them. But suspecting that you don't, we're obviously wide-open to suggestions on the themes that you would like us to pursue in those questions.

J. Weston: Okay. And we do have some questions too, I think, that could be posed if it's in the committee's….

W. Johnston: I'll summarize my comments by pointing out that this happily awaited event — the settlement of outstanding claims, which we look forward to with great enthusiasm and the fullness and fairness of which we want to be an example to the whole world — is really part of a larger picture of the

In particular, we can have the concept that rural development might follow the principles that I've called the three Ps. We have rural areas which are populated. They haven't been left vacant through the bungling of policy. They're populated, they're productive, and they're peaceful. Productive may be everything from being a wilderness area which is sought after and renowned all over the world for its pristine nature to the more classic kinds of industrial production which have brought wealth to the rest of the economy.

I'd like to ask John Weston to summarize with a few comments about Canadians for Reconciliation, Equality and Equity. Perhaps we'll launch into questions after that.

J. Weston: We have tried very hard in our meetings, which encompassed doctors, lawyers, resource-extraction representatives, aboriginals, non-aboriginals — a large cross-section of people — to come to terms with some of the themes you're seeking today.

If it's of interest to the committee, I will be glad to provide some of the articles we published on the overarching issues. We continue to desire a conciliatory approach that would bring together people who we see coming further and further apart.

Despite the strain of bitterness I remarked on earlier, I have to say that I really commend your work and this government for boldly embarking on a policy which may seem unpopular at times. We have felt very unpopular at times. We have attempted not at all to fan the flames of racism — just the opposite. We thought we ought to be bold enough to try and grasp the nettle and really understand some of these issues. So please be aware that your feet will be put to the fire, if they haven't already been put there. And don't shrink away from doing what will undoubtedly meet the opposition of a minority of shrill people but will be supported by a majority of silent people.

E. Boyanowsky: When I was president of the Confederation of University Faculty Associations of B.C., the universities were coming under some pressure from the government. This was in the eighties. I said that we'd better find out how the population feels about universities. Some of my colleagues came and said: "Keep your head down. We're the priest in the temple. The people resent us." I said: "If that's the case, we'd better find out. We're supposed to be academics, and secondly, we're obviously not doing our job." So I got a colleague who had done some work for Giscard d'Estaing in France, Gary Mauser from the business faculty, and we created a survey. We surveyed the lower mainland asking them how they felt about universities, how they felt about the funding of universities, etc. What we found was tremendous support. Even though people worked in extraction industries and in those days made $80,000 and $90,000, they all wanted their kids to go to university. They all wanted bigger budgets. They were all in favour of it.

I went back to Bill Bennett with Norm Spector, with whom I'd formed a personal relationship by then, and said: "See?" They said: "Those are in the lower mainland. That's not the constituency." So we said: "Well, who's your survey company?" They told us, and we went and surveyed. Contrary to the trepidations of the academic community and against other people's best advice, we surveyed the interior and the whole province. We got a survey.

One of the things Bill Bennett said was: "Well, sure. Everybody wants to support everything, so long as they don't have to pay for it." So I asked the question: "Would you agree to greater taxes, for example, to support universities, for greater access?" I even asked the T question. Everybody says: "Oh, you better stay away from that one." You know: "Do you understand about tenure and the six-year probationary period at which point you can't be fired without cause?" People seemed to understand that and why it was important. So even though we're getting a lot of flak in TNAC and other places — people saying: "These are complex issues. Should we really trust…? Will it bring out the worst in people to proceed with the referendum?" — my experience with the populace of British Columbia is that indeed they do understand complex issues.

They did, in the mid-eighties, understand that universities were extremely important. They were willing to pay more so their kids could go to universities. It changed the government's opinion, and now we have some of the best universities in the country, and we all now do understand that that is the way to prosperity in this new age. So I would shout "courage" regarding this referendum and say not to underestimate the populace of British Columbia. They do seem capable of understanding well-placed survey questions on very, very important issues.

W. Johnston: In addition to what Ehor is saying, I'm sure you're all aware that no argument can be made against referenda which cannot be made against representative government of any kind — the adult vote. We would be pleased to entertain your questions, and we have a few more points lying in wait to be made in response to them, we hope.

J. Weston: I just want to make sure the committee realizes that the handout features a point-by-point analysis that is the sum total of our group's attempt to provide input.

J. Weston: Well, I'm sure from the committee's perspective it may look exhaustive, because we covered several of the points that have been alluded to in a

more general sense. One of the points that may not have been fleshed out very much is the involvement of grass-roots native individuals. We have seen again and again in our analysis and in the friendships we've made with aboriginal peoples that individuals are neither involved in the process of treaty-making — I'm not speaking about chiefs or councils now, but I'm talking about the individuals — nor involved in receiving the benefit of the treaties, as they ought to be.

If I could refer the committee to a couple of points in the CANFREE statement. No. 5 is something that might be appropriate for a referendum: "Respect for the individual is the basis of our Canadian society. Governance and financing arrangements should ensure the control of governments by their electorate." Do British Columbians believe this? Or No. 6: "Similarly, the individual right to hold and dispose of private property is fundamental to liberty and freedom. Individuals may choose to hold and manage property communally, but this should not be mandated by law or encouraged by incentive." Do British Columbians believe this? My own estimate is that most aboriginals believe this and that most British Columbians believe this. Is that appropriate for a referendum question?

I strongly believe No. 7, and I know Mr. Plant does as well, despite his necessity to step down from the court challenge. "Agreements for the improvement of aboriginal–non-aboriginal relationships should not be constitutionalized, as this only serves to entrench the very inequality that has caused the problems of today." Mr. Plant referred to this as entrenching in constitutional concrete in his speech which is recorded in Hansard back in January '99. He talks about how we make mistakes in passing laws which we then have to reverse. It's just the normal course of legislation. He asks rhetorically: "Are we to believe that suddenly the 700-page agreement which is typical of a treaty is going to be without errors, that we should throw it into the constitution?" I believe most British Columbians would agree with point 7, that such agreements should be based on clear language and mutual understanding so as to stand the test of time but not be put into the constitution.

So please refer to this handout that Will has provided. We are summarizing the views of many people you have seen today.

M. Hunter: Thank you, the three of you. Welcome, Ehor. It's nice to see you again.

M. Hunter: I think your presentation is clear, concise, and I think I understand most, if not all, of the points that you made, having been involved in this issue in another life.

One issue that I did want to question you on is your views and any thoughts you might have on economic dependence and, I guess, economic independence for aboriginal people. It seems to me, in what I've observed being involved in this since the late 1970s, that there are at least two pillars behind what has been going on in treaty making with relationships with aboriginal people. One is governance and the whole aboriginal rights issue, and the other is more a policy issue which has to do with the theory that if aboriginal people are to own a piece of property or some trees or some fish, that will lead to economic independence. We've seen this in the federal aboriginal fishing strategy. It's one of the underpinnings of it. Have you folks given any thought to the economic issues as opposed to the legal and quasi-legal issues that I think are the fundamental points you've made to us so far? Do you have any observations about economic independence?

W. Johnston: I would like to direct the members of the committee to the thoughts of Prof. Tom Flanagan of the University of Calgary, who points out very clearly that we have entered a new economic era where prosperity has more to do with skills and information than it has to do with the land base. In effect, to insist that residency stay with a land base which is out of the general economy is to insist on ongoing poverty for any group of people. I can draw your attention to the bottom of the first page of our brief summary of talking points, where we state that no treaty should perpetuate transfer payment dependency nor the continuous addition of entitlements and, further in that paragraph, that property rights given to all claimants should result in normal, modern principles of financial security and liquidity.

These refer as much to having land available as collateral as to other forms of property, but we do see that we have moved into a new economy where to artificially fetter any group of people to one physical location and call that the source of their wealth is likely to distort economic decision-making and lead to ongoing poverty.

We would like to see, however, that where there is a population base on physical property, full Canadian rights of ownership and of private property be available to those who wish to take them up so that they can enter into the larger physical economy as well as the intellectual economy.

J. Weston: Let me speak quickly to that. I don't believe there are aboriginal persons on the committee, and so it's important to get a perspective on how your question would be taken by folks in a typical aboriginal group. Also, I am not aboriginal, but I act for a group that is trying to take so-called severalty — take land in severalty rather than land on a reserve — pursuant to a treaty called the McLeod Lake Indian Band Treaty. It's a very interesting case. The band has responded by saying: "If you choose to exercise your right, under this 1899 treaty, to take your land off the reserve, we will cut you out of membership. We feel so vehemently that your decision to take your land — a treaty right, mind you — outside the reserve is a betrayal of your allegiance to our group that we will cut you out of mem-

From an economic perspective I agree with Professor Flanagan, whose book First Nations? Second Thoughts you commend to the committee. But bear in mind how this would be perceived by the aboriginal people, whose issues we have to consider with the utmost of sensitivity.

E. Boyanowsky: Not necessarily, but let's choose fish, as it's dear to our hearts. I think the concern is the communal ownership of, for example, the fish. We know how tenuous the wild populations of fish are and how difficult it is to sustain them. One of the problems with communal owning of fish is that there might be communal, equal owning of less and less and less, to the extent that there is ownership rather than accessibility and opportunity to protect this resource on the part of all British Columbians. So as it becomes compartmentalized but is, for example, owned communally — you see what I mean? — it may not have the same value in terms of preservation for all of society. Yet no individual would own it, and to that extent no one would feel committed to it.

I think that's the worst of both worlds. You can have private ownership and argue for things and battle it out — as they have in Britain, with some success and some failure — or you can have the public ownership with accessibility and a proprietary interest in that sense. I think — and I'm just using fish, but it could be any other resource — that as long as everybody feels that they share or have opportunity for it, you will protect that resource. To the extent that only a small group does but none of them actually feels any ownership, it's the worst of both worlds in any aspect of any resource. I think that's what treaties seem to be heading towards, or at least some of them, and that's what concerns us.

R. Visser: I want to ask you, just to be clear: do you want to have two referendums, one for aboriginal people and one for everybody else — including aboriginal people or just everybody else?

E. Boyanowsky: Some people might regard it as too risky, but what I would like to see is the first referendum directed towards aboriginal people. It would do at least two things. It would put the lie to the fact that this was some sort of racist intervention. It would allow a voice for individuals, so long as it was done under strict, confidential circumstances, to determine what individuals really, really want.

Just to use a little anecdote, for example, my wife is Scottish, and her dream was to go back to a Hebridean village. She thought that would be the idyllic life. Well, I rented Sam Peckinpah's movie Straw Dogs to disabuse her of that. You go to a small village where people have lived for hundreds if not thousands of years, and they remember the relationships among the families. Nobody wants to speak out. I remember going to Bella Coola once and arguing against a hatchery in favour of wild fish. At first, I thought we would be intruders, the "suits from downtown." Everybody came to us and said: "Thank goodness you came in there and spoke. We couldn't say this or that, because we would offend this family, that family, etc."

I think what we really have to find out — and what John is discovering and what I've discovered — is that there is another sentiment which exists at the individual level that would put the lie to the fact that we are not consulting aboriginal people and that this is a racist referendum. This would tell us what, indeed, the preferences of aboriginal people are. Then, I think, we should proceed with the larger referendum. That would be my strategic approach.

J. Weston: It's an interesting idea. We've never actually debated that. It's not a CANFREE position, but it's an interesting idea.

E. Boyanowsky: We did discuss it earlier in our meetings, when I suggested it originally, but we didn't have the resources to do it. We thought it might be a splash of cold water on the process. It's expensive to do properly.

G. Trumper: Just following up on that, what was going through my mind was: so you have two referendums, and how do you decide who is eligible for it in the aboriginal community?

J. Weston: There are lists and there are lists. There's a list of status Indian persons, and there are lists of people who belong to certain bands. There are lists of eligible voters, which are a subset of the second list. Clearly, this whole concept would have to be considered very deeply. Then you want to come out confidently with your proposal. You may be very tentative at the beginning. It's a very good question that you raise. There are answers to it. The federal government would have to be helpful.

G. Trumper: It's interesting, because I do know, certainly in the area I come from, within the different bands that are there — and there's a lot of them…. In getting towards the AIP and the discussions that took place, they had different views on who should be included in those — whether or not you were one-quarter or 1/16, as you made the point earlier. I mean, the bands were very different on who is eligible to be considered to be a member of that band.

J. Weston: There was a whole court case on this issue in 1996-97 concerning the Nisga'a treaty, when several dissidents said that the wrong ratification process was used and notice wasn't properly given. All of those issues come to bear for each vote that you consider making.

V. Anderson: In your comments you used a word describing a racial group of people — perhaps you wanted to find the characteristics of a particular racial group of people — and then you quickly moved to the implication, almost, that if you did that, you were being racist. I wanted to clarify that.

W. Johnston: I'm sure we'd each like to speak to that. Maybe I could lead off, because that might have been one of my summarized points. Clearly, we are moving out of an era where there was a racial disadvantage to being a Canadian aboriginal individual. The challenge is to make sure that the racial distinctions which are used to settle the process are able to redress the past wrongs, but that then we are able to move in some kind of a graduated process, some kind of a timetable where we can move beyond racialism as a guiding principle for allocating rights and principles.

What we are asking — I make the point on page 2 of our summary — is: does section 35 of our constitution intend to define Canada always and forever as a racially divided country, or will section 35 be fulfilled and permanently satisfied when the last signatures are dry on the last treaty? And does the referendum need to seek a consensus that eventual equality of all is as important as fairness of compensation?

If we take an example of racial disadvantage from our own recent and shameful past, by the time the Second World War had been wrapped up, I think very few of us would say that the Japanese Canadian community had received fair compensation. But no one can point to that community today as an example of being disadvantaged and particularly afflicted by social evil. The reason is that they may not have had fair compensation, but they had full equality and participation in the larger society.

You could even argue, although it would not be popular at an early point in settling a treaty, that eventual equality of participation in the larger society is more important than fairness and fullness of settlement. That won't fly when it comes to putting the ink on the treaty, but in terms of the ultimate well-being of all of the individuals that make up the group with which the settlement is being done, you could argue that eventual equality is far more important than the magnitude of the settlement that is being made.

So we would ask the committee to be brave in not taking section 35 as dooming Canada to a bad dream in which we forever have to deal with questions of DNA in the same breath that we deal with questions of rights. Let's be able to move outside that box and not let it constrain us. This was a document made by human hands, as far as I am aware, and we must not let it distort our society in perpetuity.

J. Weston: Two points well made — equality and time. I think Gordon Gibson can make these words ring better than anybody else I know, so I'm glad that he's here to give testimony. Point 4 of our principles could be the subject of a referendum question: "All Canadians resident in a political constituency should have equal voting and representational rights in matters of general governance. New political entities" — and I would add "or entitlement" — "based on discrimination should not be created." You could say, "Should these be phased out over the next 50 years?" so there's a time horizon on what some people would say is our replication of apartheid.

B. Belsey: Am I correct in understanding that your group supports the municipal form of government for land settlement? Is that correct?

J. Les (Chair): Maybe some comments from you. Let me just describe for a minute what I think has been happening over the last eight or ten years. Many people have seen the treaty-making process as being a one-time wholesale event, where when the signatures are dry, the agreement is there, cast in concrete, and that's it. We move on and leave it behind, and people live on and with the treaty.

Is it perhaps wiser to see the treaty-making process as an incremental process, where we deal with issues sort of on a consecutive basis and perhaps in a different way, depending on the circumstances, given the aboriginal situation? So we don't look for the silver bullet solution but look for more pragmatic solutions, in a consecutive way — realizing, of course, that this opens up perhaps a very long time period. But I think — at least, I think others think as well — that this could lead to a more productive process with more pragmatic results.

I'd like your views on that. Perhaps that could help shape our thinking in terms of the referendum questions as well.

J. Weston: As a constitutional lawyer, I couldn't agree more heartily with that sentiment. The closer we get to putting things in the constitution, the harder it is for them to change. The unanimous agreement among this group of three concerning the municipal question relates not so much to the fact that we love the Municipal Act but to the fact that we can't see these problems being effectively resolved by putting the answer into a constitution which has such a difficult amending formula, involving the federal government, involving several of the provinces and involving, as a party to any constitutional agreement, the aboriginal group itself that is subject to the treaty.

So your proposal makes inevitable sense. I think that if people can get over the hubris of wanting their rights to be entrenched in the constitution, their rights will be far more flexible and more effectively utilized in modern-day Canada.

E. Boyanowsky: I think the concern is that there was, to some extent…. Let me say that first, last and always, I do believe there is no alternative to integration. If you underline ethnic differences and compartmentalize people, by definition they will go in that direction. We know it everywhere — in the Balkans, in Great Britain. Having lived in Great Britain, coming from a Slavic eastern European background, I was shocked at the divisions that were still very salient in people's minds. People have Irish stereotypes, etc., based on…. If you live in London, as I did when I was teaching at the London School of Economics, I believe the tendency is for people to underline their differences.

When the king and the queen, in their beneficence, gave special rights to the aboriginal people, I think the intention was that it was a fiduciary duty to take care of them in the absence of full rights as citizens. I think what has happened, because we've procrastinated, is that in the interim aboriginal people have acquired all the other rights of Canadians, including being able to vote, being in the army — just about every possible right. Because there wasn't a treaty process to negotiate these along the way, they now have the full rights of Canadians and this lingering issue of the original rights given to them when they were really wards of the state.

What I see a treaty process doing is not forcing integration, as we attempted to do, through the residential schools or whatever. I do think that aboriginal people have to be educated to the very highest degree. Certainly all evidence indicates that their intellectual capabilities and every other capability are equal to or better than any other group. I think that's the way to success.

By the same token, I see the treaty process as trading off these other special wardship types of relationships for full integration and for full participation in the economic and political life of Canada. Unfortunately, those were never coordinated before, and we're in an awkward position in history right now. It's created a logjam, but I think we can get past it, so long as we make it clear what we're attempting to do and how. Then I think integration and harmonization will inevitably take place so long as it's not perceived as an imposed, coercive process. It should be seen as an attractive thing, and I think that means…. As I said to Mr. Plant on Friday, it means sweetening the deal. Do you really want to take a risk, be in this process for 50 years and see all this money being used up in the process? Or would you like an opportunity now, a leg up now, a settlement now with resources you can rely on so that we can get on with it? That's why I'm so convinced that the aboriginal people will choose that direction.

D. MacKay: Just to follow up on that line of reasoning, it has been suggested to me, and I guess I support the idea of having an end date to the treaty process. As you say, we could be doing this another 50 or 100 years from now. We could still be in the same process because of the different demands that the different bands are placing on the treaty process. Have you given any thought to having an end date to this process for the province, or do we just carry on? Or do we have an end date, our official end date, and say that if we haven't resolved the issue by this date…? Do you impose our lifestyle on the native bands, or do they just assimilate into us? How do we get around that, this ongoing process? How do we put an end to that, in your view?

E. Boyanowsky: Well, I believe — and John and Will, please cut in — it's a matter of decreasing harmonization so that the incentives all go in that direction, so the aboriginal people have opportunities, perceive them and are informed so that they can act on them in the same way as other sectors of the economy. I mean, they are going to be very powerful players in the economy. If these are cast in aspic and separate from the economy, we're both going to suffer, aboriginals and non-aboriginals. To the extent that there's increased harmonization, it has to be a trade-off. We can't step back and say, "Oh, wait a minute," 50 years down the road. "I'm still arguing, but I want to go back to the original idea that I can fish and hunt and do whatever I want." You can't save, for example, wildlife species or fish that way. Everybody has to understand that we operate under one system in terms of conservation, whether operating one system in terms of the economy…. But you have to have resources in order to participate in that. So I think you could set a framework.

A friend of mine, who I've had many arguments with, got an agreement-in-principle after 20 years. He took two years, took a sabbatical and did it in the Yukon — for better or for worse. We've had lots of drag-down arguments about it, and we're still friends. That's Judge Barry Stewart. He just said: "I'm going to do it in two years." So I think you can set time frames. What you have to point out is that if we work together, this time frame will work for us so that the faster we get there, the faster the advantages and benefits will accrue. I think that's the issue: the faster the benefits will accrue. I want my children to benefit from whatever British Columbia has to offer educationally, resource-wise, while they are developing. I don't want them to be placed in suspended animation for another 50 years because of some superordinate issue. That's why I think breaking it down into individual destinies, with a common destiny that's celebrated but not used as the underlying distinction among individuals, is the way to go.

I think it's the Canadian way. We celebrate our differences, we promote our commonalities, and we try to empower as many of us as we can with the resources to participate. That's what I feel in my discussions with aboriginal people: they don't feel they have the resources to participate.

J. Weston: There is a problem with a time frame, though. Section 35 specifically entrenches aboriginal rights, so the courts would probably not conscience any other party to, first of all, a treaty saying what the time frame is. By the same token, you could say: "Well,

this is on the table now, and it will diminish over the next five years. So if you want to accept a treaty by which individuals in your band will each receive a direct payment of X and a certain portion of land that equals Y, that will be available. Otherwise, that will diminish over a five-year period, and if we have to go to court, we have to go to court. That is my reasonable offer to you as someone bound by the constitution and the laws of this land. If I don't get my deal, then we'll have to go to court." Ultimately, that's what's going to happen anyway.

Maybe do it over five rather than 50 years, and then space out the entitlements perhaps over 50 or 100 years, so you don't end up with this problem of individuals getting a large amount of money and not being prepared to deal with it. Maybe it has to be spaced out over children and grandchildren. I like the idea of finality in terms of the time frame, but one has to be aware of the constitution and legal constraints within which you have that.

W. Johnston: If I can add to that. Your question has unleashed a little bit of brainstorming here. None of these comments have been hammered out in detail by all of those who have associated with our group and who have acted as kind of an informal think tank over the past couple of years. There are also positive ways to create a motivation to get on with settlement that might be tied, for instance, to completion of all negotiations within British Columbia to bring further benefits to all of the parties so that one could even imagine a lineup to get on with a settlement. When the last treaty was inked in this province, part of the treaty-making structure would give further benefit to all of the participants. I'm sure there are creative ways that could be discovered to non-coercively induce and convince…. Our children deserve that we act and act soon.

E. Boyanowsky: I think the main one is to get the resources so you can use them — you know, the money, land, whatever.

J. Les (Chair): Very good. Any further questions? Bill, did you have another one?

B. Belsey: Have you given us your questions that you're now recommending we consider for a referendum?

W. Johnston: We would be pleased to come back and speak to the committee again with more specific questions recommendations, but that would require a little more thought. In fact, it would require, I think — for you to get the best results from some of the very thoughtful people that have contributed to our group — for us to hear from you, as well, some of the directions that the committee sees going in.

J. Weston: Will has distributed to you a list of points which could be distilled into questions. The companion handout is the seven-point statement of principles.

E. Boyanowsky: As a social scientist who has done many surveys, I would certainly offer my services if they could be of any help in terms of working at something that might produce clarity, etc.

J. Les (Chair): Okay. Well, on behalf of the standing committee I'd like to thank all three of you for your very interesting presentation this morning. You've given us a lot of food for thought.

I will accept your offer of perhaps further involvement with the committee and leave it at that for the moment. We'll see where that goes. We will be travelling the province over the next several weeks and talking to numerous people, obviously. It might indeed indicate a desire on our part to have a further meeting with you. In that case, we will contact you and look for the advice you might have at that point. I think your comments this morning have been insightful, helpful, and will no doubt assist us as we embark on this admittedly challenging process.

J. Les (Chair): And the food is here, as Dr. Tennant points out. I'm sure he'd like to partake as well. So with all of your indulgence, can we take about 20 minutes at this point to break for lunch?

J. Les (Chair): If you are all ready, we will resume the meeting. Currently we are joined by two presenters, Dr. Paul Tennant from the University of British Columbia and Gordon Gibson from the Fraser Institute.

I gather, Dr. Tennant, that you will be presenting first. You are, of course, no stranger to many of us. We welcome your presence here today and look forward to your presentation.

P. Tennant: Thank you, Mr. Chairman and members of the committee. I'm especially pleased to see your former worships on this committee. Wherever there's municipal experience, there's wisdom to bring to bear on this and other issues.

I think it's appropriate if I begin by saying something about my experience. I've been interested in this issue area for more than 20 years. More recently I've taught our UBC course on Aboriginal Peoples and Canadian Politics, as it's entitled. I've also done a fair bit of consulting, mainly for aboriginal organizations and mainly in the Yukon. Certainly I've done consulting for the territorial government in the Yukon, for this pro-

vincial government in a minor way and for the federal government. So I've spread my favours around but have, I hope, learned something from this experience.

Let me go into some detail over the first page or two and then use the remainder as an outline. I am anxious that people understand why I have changed my position on the referendum, because indeed there are good and valid reasons for opposing the referendum.

While the Liberal Party was in opposition, its approach to aboriginal issues did cause, I think, justified concern on the part of those in favour of aboriginal rights that there might be some use of the referendum in having the majority gang up on the aboriginal minority. It's also the case that native spokespersons have expressed concern that a referendum debate would allow racist bigots to have more of a platform than they otherwise would.

Until recently, as I say, I have been opposed to a referendum, though I have said somewhat jokingly that a referendum among the majority would be valid only if it were preceded by a referendum among aboriginal British Columbians. I see that idea has more currency than I'd expected today. But the reality, which I think is denied by some speakers, is that aboriginal community — that aboriginal identity on a local basis — is a very important part of this, and those who dismiss community as an important element are missing part of the bigger picture.

Now, I would still welcome such a referendum, but I believe there are good reasons for supporting the referendum that your committee is working on. I must say that part of my change of mind has come through my ongoing discussions with Gordon Gibson. Indeed, we are here as a certain form of partnership, agreeing in our disagreement. What Gordon and I do share is the conviction that full, open, respectful discussion among those who disagree can and should be an important part of our approach to all important matters of public policy. We also agree, as I said, that agreeing to disagree is a part of ongoing society and politics. I do want to state, since there may be some misapprehension here, that my later characterization of a hard-core version of opposition to aboriginal rights does not include Gordon. I do not include him in that category.

I think the referendum should be supported for several reasons. In the first place, it's not really a referendum, if we use referendum to mean a binding decision made by the people that a government has no choice but to follow. What you're considering is better described as a plebiscite. It will not be binding in any legal way on the government. Secondly, perhaps in part because once one becomes Premier, one must listen to more people than previously, it's my take on matters that the Premier has indeed made it clear what the referendum is not intended to be. This reassures me greatly.

In particular, his endorsement of the B.C. Claims Task Force recommendation in 1991 curtails the hopes of those who wanted the referendum to be a way of killing the treaty process. That clearly is not intended by the Premier. More importantly but perhaps more subtly, as well, I think it's becoming clear that the debate and referendum can properly be perceived as a matter internal to the non-aboriginal portion of our population — what I shall call the majority mainstream tribe, or MMT. We in the MMT have never had the full and proper debate on aboriginal issues that we ought to have had and should have had a number of times, and we suffer for that. As an MMT elder, self-appointed, I welcome the debate and the opportunity to take part in it.

Indeed there are racist bigots among us — and I speak generally, not in this room — but they are few in number. They thrive in the sort of unfocused and indeterminate debate that has characterized the last decade. Through radio call-in shows and casual discussions, they are difficult to counter or to hold to account. I think the referendum debate, which will have a focused purpose, has the potential to go some way in remedying this situation. It certainly is the case, obviously, that stifling debate encourages the very sort of bigotry that none of us would wish to see as a major part or any part of our public life. It's also the case that at this point, given momentum — some us, after all, are not yet used to governments that keep their promises — cancelling the referendum would be a more dangerous and difficult thing than proceeding with it.

I think it's important, too — this implicit notion that came out with the previous presenters — that indeed there are two fundamental realities in British Columbia: the aboriginal and the non-aboriginal. That is an understanding that many of those who oppose aboriginal rights in fact deny. Our coming to that understanding, I think, improves our potential for improving matters for all of us in this province.

Secondly, what is the referendum really about? I'm always impressed, as I observe matters in public debate, how very often there is no real debate, because the two sides are arguing past each other. They're relying on their own assumptions; they're not explaining. Indeed, I'm reminded of a psychologist friend of mine who was fond of saying that spousal spats over housework are never over housework. I think that some of our spats over aboriginal rights are not in fact over aboriginal rights but are referring to underlying values that we have and are not always even conscious of. I won't spend much time on it, but as my last-page attachment, I've set out my depiction of these two broad views in British Columbia.

The vocabulary of our debate. This is literally a very important matter for you, because the questions you come up with will guide the debate in a very important way. The problem is that we, as yet, have no adequate vocabulary for talking about these issues. Most of us in this room are comfortable with the municipal analogy. After all, we're talking about local government, local communities, when we talk about aboriginal self-government. Yet from an aboriginal perspective, that can be a very frightening and belittling concept. As I've said before, municipalities can be seen as lap dogs on the leash of provincial government.

That leash can be yanked or the choker collar can be pulled at any time. The experience out of the Indian Act has not made native peoples confident that this is a model they like.

The key words and terms that we often do use, on both sides, perpetuate misunderstandings. I will not go into detail here, but I've listed some of those words: nation, first nation, culture, citizenship, racism, racist, race-based. People who use any one of those words are typically missing another dimension that the other side would like to see acknowledged.

First nation, for example. I've been impressed by some of the misinformation in some of the National Post editorials and columns recently, where the assumption or statement is that first nations means first here on the continent — after the Ice Age or whenever. No. First nation simply means here before the rest of us, literally at the time of British sovereignty. That avoids a lot of the contention about: what is the moral basis? was the Kennewick man white? It's those sorts of things which we don't need to get into.

Also with the native use of the term "racist." The rest of us balk at that. We know we're not racists. If one looks at what is really meant, it is not racist in the South African or southern U.S. sense; it's somebody who's caught up in his or her own ethnic values and is not appreciative of differing values among native peoples. That's a very different thing. I've often been unpopular among native audiences by saying that no, it's not racism we're talking about. Unfortunately, we have no other word. Ethnocentrism is one that we social scientists use, but that's not going to fly in the public.

So we lack that vocabulary. Above all, we lack a word for the rest of us. I refer to the New Zealand example, where non-Maori are called pakeha. That's used commonly in New Zealand English. It's a certain mark of respect for the Maori, because it's a Maori word. At the same time, it involves the Maori acknowledging that the others are there and are part and parcel of New Zealand. In the eastern Arctic, in Inuktituk, there's a similar concept, qablunaat, which means non-Inuit. We need such a word here in British Columbia. It would help debate. I don't like being thought of as a non-aboriginal. There are positive aspects to my being a British Columbian, and I'd like a word for it.

My favourite word, actually, is the Nisga'a word, which I can't pronounce, so it's not useful. The Nisga'a word for non-Nisga'a — white person in the old days — literally means driftwood. That's not a bad term. Again, I'm not suggesting that you have a question about that on your referendum; I don't think that's quite appropriate at that stage. But there does come a time when we non-aboriginals should have a name for ourselves, probably a native word. That would mark a very positive evolution in this province. I don't mean my "mainstream tribe" to have any lasting significance, but I use that term here.

P. Tennant: You're more clever than I thought an ex-mayor would be. [Laughter.] Good for you. That's very good. Yes, that's what it is.

Now, the treaties and the treaty process. I spent a lot of time in the Yukon. I was in the Yukon for the last ten years of the 20 years of the negotiated Yukon agreement. I'm not one of those who think that deadlines or short-term agreements are worth very much. Treaty-making is not about the final piece of paper. That's merely a final stage which will not be a final stage. The treaty process is a process. In the Yukon that 20 years was well spent.

There was a time, a little more than halfway through that process in '84, when the native side pulled out and said: "We don't like what's going on here." The reason, essentially, was that a new generation of young native people had come out of high school and didn't take the same approach their elders did. They needed time to settle in and think about things. The native side walked away from the table when they thought we were going to have more than $600 million on the table. The feds said, "This isn't going to be here when you come back, if you come back," and they said: "No problem. We're not worried about money." They came back eventually and settled for a little over $200 million. Treaties are not about money. It must be realized that commonly the native perception is: "This land is not for sale. It's for use by others in many circumstances, but sale is not a concept. Our concepts are adequate here."

So my view is that the longer treaties take, the better, providing some progress is being made and providing some understanding is being attained, which leads me to a couple of other points. We have got off track, to a large extent, in debating treaties in this province by not recognizing that treaties are primarily — not entirely but primarily — local matters. The first nations involved are local communities, comparable in many ways to the neighbouring municipalities if there are any. In most cases there are neighbouring municipalities for first nations in this province. They are similar; they are in the same category. Local communities are concerned with local affairs. They live under a different legal regime, and that probably always will be the case, but we can see many cases…. Mayor Les has played some part in this and so has former Mayor Trumper, in their municipalities — understanding this similarity and realizing that both sides can benefit from interaction.

Indeed, this province has a remarkable element of its politics that not many realize, and that is a profound respect for local identity. It doesn't exist in Alberta; it doesn't exist in most other provinces. The notions of local plebiscite, ethnicity, identity, whether or not there would be municipality, allowing places like White Rock to secede from Surrey if they have the vote…. That respect for local community is a very precious resource, and I think there's much potential for the province, in fact, to recognize that native communities and municipalities are similar. They're not the same, but they're similar in many ways, and the treaty process or other processes must work in that direction and allow that to take place.

I do want to point out, because it's on the minds of so many of us, that in my view the debate over the Nisga'a treaty got off track. It was debated, largely at the behest of the Liberal opposition, in provincewide terms that were largely irrelevant to the particularities of the Nisga'a situation. It would have been much better were there a non-Nisga'a municipality in the Nass Valley. In that case, that municipality would almost certainly have supported the Nisga'a treaty and could have fended off the intrusion by the larger public in discussing some of the details of that, just as later on the municipality of Sechelt served as a protector of the ideals in the proposed Sechelt agreement. In a sense, the municipality acted as a surrogate for the rest of the mainstream tribe in dealing with situations. There was mutual trust there, and that was a very important element.

There's been a lot of talk about certainty in treaties. I think it's a misleading concept and a misguided goal. Certainty is not a meaningful general principle or goal of the treaty process. Only in narrowly defined policy areas — land use is obviously one of them — is certainty, in a literal sense, a valid concern.

You are all politicians. We have you because we cannot be certain about the future. We want you to make decisions. We elect you to make decisions in terms of what happens after you get elected more than what happens before, because we can't predict the future. What we should be confident about is that we trust and respect our politicians. You'd like more of that, I'm sure. But that is the basis of what our system works on: trust. None of us looks at laws every day to see how we should behave. We know how we should behave. We know what we expect of politicians. Trust is the basis of government, and trust has to be the basis of good relations between aboriginal and non-aboriginal groups in this province. There's much of that already. I'm not saying this is a new thing. It's at the municipal level that it can best be attained, because there are meaningful concerns with real-life problems. There can be face-to-face interactions, and face-to-face interactions have a marvellous way of bringing out the best in people, not the worst. It's abstract debates at this level that tend to bring out the worst in people.

I agree, as it is almost common wisdom now, that the treaty negotiations should be separated into component aspects. There was some anticipation…. In fact, I suspected that some of you had been reading my notes in advance in terms of some questions you asked of the previous witnesses. In my view, in the best of all circumstances treaties would never be finished. There'd be some agreements on important matters, which would provide a certain basis, some certainty — you know, settle both sides in terms of their concerns. From then on — in terms of the things that really matter to people in their everyday lives, to the first nation instituting it, to the neighbouring municipality or the people in regional districts around reserves — there could be simply an ongoing process of consultation, of interaction, and many things happening in common.

There are many examples of that now, but we need far more of that. It's still not the public understanding and acceptance that much of what goes on in municipal government is the same as what goes on, or needs to go on, in first nation communities. There's a practical understanding on both sides of that. There's certainly a very remarkable openness on the aboriginal side to cooperation with neighbouring groups. It's often a matter of attitude, and as I've suggested elsewhere, diplomacy is needed on the municipal side — diplomacy on both sides, but especially on the municipal side — to get things going.

Certainly, much of importance in this province will not be embodied in the treaty process. Much of importance between first nations and neighbours will not be met or…. It doesn't need to be. The more trust and respect there is, the less treaties will be needed. That's why my view would be: some agreements, yes, to show good faith and establish a basis, but from then on, it's really a matter of neighbours getting along with neighbours. I don't think I'm being as idealistic as some might think here. I can give you examples in the Yukon and British Columbia where trusting, healthy communities have had very good success in dealing with neighbouring municipalities and doing things on a cooperative basis. I'll come back to that general point in terms of a possible question you might suggest.

The B.C. Treaty Commission has to get some attention as the ostensible keeper of the process. It plainly bears some responsibility for any failings in the process. I think a fundamental failing of the commission has, of late, been in the timidity it has used in approaching its task. It has not been the rigorous keeper of the process that I expected in 1991. As the granter of negotiating funds to the first nations, it has not interpreted its mandate as being rigorous about the capacity of the groups receiving funds to proceed to negotiate. There certainly have been cases where money, if not misspent, has at least not produced useful results. That should not happen on any extensive basis. The commission should be in there keeping track of things and, more generally, should be taking the approach of value obtained for dollars spent. There's nothing immoral, nothing particularly special, about that. The commission is the only entity that can do that, and I think it should be doing more of it.

As for referendum questions, I'm assuming there will be more than one question. I assume that's necessary in this sort of approach. I do think that one question, although I don't have the wording for it at the moment — I have trust in you people to come up with the wording here if you choose to — should relate to greater participation by local officials. Municipal officials I'm thinking of here.

Now, this requires some change of opinion on the first nations side and on the provincial side. First nations may be hesitant to regard municipalities as their equals or as reliable allies, but in human terms they are most equal. They're neighbours; they have much in common. We've got a number of cases where first nations municipalities, in getting together, have been able

to have much more influence on the province than either would themselves. There is a remarkable potential in these sorts of alliances.

As I sometimes say jokingly, but I hope it's taken seriously when I am speaking to audiences of municipal officials: "Look. First nations are going to have self-government, like it or not. Wouldn't you like to have self-government too?" It's possible that since the treaty process, principles, one of which the Premier has endorsed — he's endorsed all of them; this is one of them — allow any matter to be brought to the table by any of the parties, I think there is a potential for municipalities — I want you to think of your local roles here now, the people you represent, not the people you obey in Victoria — to think of ways that municipalities could have a role not within the treaty process. That's fairly easy. They need members of the provincial team, probably. That's the way to do it; no difficulty there. Have the treaties prescribe certain roles for the municipality in relationship to aboriginal governments. The dispute resolution, for example, could certainly involve municipalities. So there's a way here to in fact strengthen all of them in this province, not just first nations government.

Finally, in terms of my comments, I'll refer you to my final sheet. Again, I do not wish to be patronizing. Clearly I myself fit in what I call the aboriginal rights view. There are others who fit in what I'll call the traditional, mainstream, majority view. There are some people for whom all eight characteristics fit. I call them the hard-core opponents of aboriginal interests, but there are many who are opposed for various reasons who aren't hard-core. I want to make a distinction that I'm speaking generally here but also trying to distinguish.

I think it's clear that the previous presenters are characterized by several of my observations — No. 4, for example, and certainly No. 7. There is a pronounced emphasis for faith or conviction or hope that the native leaders don't represent the real people, that the ordinary Indians are somehow subjugated by the native leaders who are self-interested and not speaking for them all. This is a very simplistic tactic for dismissing people you disagree with. Management can do this for unions; unions can do this for management. You can have secret votes and all those sorts of things.

I think it misses a really important point: namely, that among aboriginals in this province there is a profound sense of aboriginal identity. Very often, to confuse things, the word "culture" is used by aboriginals. What they really mean, in my view, is identity, because in cultural terms most aboriginals are just like everybody else. My aboriginal friends, for example, have the same interests I have. We talk about sports or whatever. We're regular Canadians, but they have something I don't have, and that's this matter of identity. We English Canadians, who have the same culture as the northern United States does, should be very aware that identity is different from culture. I think most of us are quite sensitive when we're accused of being Americans when we're outside this country. It's a matter of identity, not of culture, and that's an important point. Native British Columbians tend to be bicultural, if you will, and the treaty process is seen by many, if not most, as their way into British Columbia — not as leaving, not as a separate type notion.

When we think of comparisons, those who have this traditional, mainstream, majority view tend to compare in terms of nation states, of Scotland, of Rwanda, of the Balkans. Why is there no mention of New Zealand? Why is there no mention of the United States? I happen to have a special interest in the Navajo and the Papago in the southwestern U.S. — major tribes, major reservations. In fact, last May I spent three days on the Papago reservation in southwestern Arizona — major tribes. There are 250,000 Navajo. Their reservation comprises about one-third of the state of Arizona. On those reserves the powers of government of those peoples are set up on an ethnic basis; some would say a racial basis. But to say "race-based" for aboriginal government is to demonstrate a certain intellectual paucity, a failure to recognize the simple concept of aboriginality. It's not a matter of race.

In Scandinavia the Sami, formerly called Laplanders, are of the same race as the majority in Norway, Sweden and Finland. Yet they know themselves to be and are recognized as being aboriginal peoples with aboriginal rights. You can't call that race. It's a matter of aboriginality.

One of the real hangups in the debate is the use of "race-based" as an assumption for why this other group, as a group, has certain abilities. We're resting, after all — and I know Gordon's going to say more about this — on constitutional principles and the rule of law. We are debating matters of British and Canadian constitutional law. That's what we're talking about. Aboriginal claims are not based on some airy-fairy notion of aboriginal sovereignty. They're based on British law. That's why they're winning. British common law did indeed — does still, indeed, in its Canadian guise — protect aboriginal rights, and that's what we have to come to grips with.

I'm confident that we can come to solutions in which we do regard people as equal in fundamental ways but accept that various groups, whether they're churches or corporations or first nations, do have certain abilities in certain places. We respect those differences at the same time as we have a common identity. That's what we should be attaining and what I hope your committee will move us towards.

J. Les (Chair): Thank you. We'll take questions for Paul first, and then we'll go to Gordon afterwards. Go ahead.

V. Anderson: Paul, when you talk about the aboriginal identity, can you comment somewhat on the nature of that identity? The aboriginal identity is strongly faith-, religion- or belief-based — whatever the proper term — as to who they are in relationship to the Creator, and my understanding is that the land is in that same kind of discussion. So they're negotiating, if

you like, from a basis that we as a secular society aren't prepared to meet them on common terms, and so we go by each other in our understanding of what land means. My understanding is that land means to the aboriginal much what land means to the Jewish nation. It's part of their identity; it's part of who they are. It's not a possession. It's part of the reality of who they are. Can you…?

P. Tennant: Yeah, I agree with you, although I think the differences aren't as great as one might infer. You being a man of the cloth would appreciate that there's a lot of really secular natives as well — or maybe you wouldn't appreciate it, but you'd recognize it.

P. Tennant: Oh, you understand it perfectly then. No problem at all. [Laughter.] I grew up in the United Church. Certainly any group that's lived for a long time in the same place, has a language of its own, has names in its own language for the landmarks around the place and, in the last hundred years or so has developed a philosophy of injustice in terms of what's happening in that area so there's a whole line of grievances but at the same time a remarkable, amazing willingness to share…. It's not often recognized how in all the major statements of native leaders in this province, there's always an expressed willingness to share. That's what the treaty process is all about. It's sharing.

Again, I can't speak for native people in terms of having worked for them and with them and observed, but my view would be that yes, there is this identity with the land. But the concern is more for a respect for the land, that those who live in the same area will have some respect for the land, know some of the native names possibly or not interfere with native burial sites — those sorts of things. To be neighbourly: that's the essential point.

There's still a common misperception that native groups are seeking complete control over their entire traditional territories. Nonsense. That is not the case. Why would we be in treaty making if they wanted that? In treaty making you end up with a lot smaller piece of land than you had in the beginning. So my thought is that it's not essentially different. It becomes, in some cases, a gain — maximum gain, obviously.

It's certainly my observation, and I've been at a lot of negotiating tables, that when there is genuine respect and understanding on the government's side, that will be appreciated — not as some sort of sop to the native side. What is desired is this respect, this ongoing relationship and respect for native identity, yet also knowing that natives are the same as other British Columbians in most ways. That's what the key is, and that's why some natives can get very upset by statements made by some people, just as I'm about to get upset by some statements made by Matthew Coon Come — calling us racist, that sort of thing.

That's not the reality. There's a broad-based similarity, and that's what we have to build on. My answer is: there's not as much difference as you might think.

B. Belsey: Dr. Tennant, I want to first thank you for your presentation. It's very interesting.

I represent the North Coast. In my riding approximately 43 to 45 percent are first nations, and included in my riding is the Nisga'a territory. There's a few comments you've made that seem to be contrary to the process we're working through here. I don't think it's any secret that this process is probably moved forward not so much by first nations but by the MMT issue so cleverly referred to. Some of the comments made, like on longer treaty negotiations — that the longer they are, the better — would certainly be contrary to anybody working in and around areas where treaty negotiations are taking place.

P. Tennant: But note my ancillary comments. I'm assuming treaties in fact can be broken into components, some of which would be worked on fairly quickly. Others don't need to be. That's my point. Those that do really rely upon trust and understanding — just knowing what's going on, just as you and I basically know the expectations in this room. We can discuss these things.

B. Belsey: But when we have 110 percent of the land base under treaty negotiations being identified by first nations….

P. Tennant: May I ask you a question? What is the implication that you make when you say 110 percent? You've got a little meaning in there. What do you mean by that?

B. Belsey: Absolutely. The meaning is that I think first nations are looking forward to having this entire province or would like to have control over it. We all know that will not happen, and first nations agree that it won't happen.

B. Belsey: My point is that those trying to make a living off the land — whether it's in forestry, mining, fishing or whatever the case may be — are very interested in having treaties completed so they can move ahead. I think it's very important that we try and resolve treaties as quickly as possible.

P. Tennant: Well, my point is that there are — I agree, and I've said — some components, and you've mentioned some of them, that do need to be settled fairly quickly so things can proceed: economic development, etc. That's very, very true. But there are a lot of

other things that I think aren't as urgent, providing the people involved are satisfied that progress is being made. I could quote you various statements that Nisga'a leaders have made which would endorse that point of view. The late Jimmy Gosnell was famous for a number of those statements.

In my view, the point about 110 percent overlooks the fact that traditionally they were shared. The mouth of the Nass was used by a number of different nations, so they could each properly say: "This is part of our traditional territory." It's not that they're being those sneaky people today trying to claim things they never had, but it can be interpreted that way when you say 110 percent or 125 percent or whatever.

B. Belsey: Just another point. We talked about the Nass, and there is a community that was not aboriginal that has found itself within the Nisga'a agreement. That's Nass Camp and area. At one time, I think, before the treaty started being negotiated, there was a population of around 300 people there. It's probably been reduced to somewhere around 50 people today. So they are very concerned. I get phone calls fairly regularly about what's happening in that area, certainly, as a result of the Nisga'a treaty. So I think there are concerns for non-aboriginals who have fallen inside of now treaty lands, treaty areas.

P. Tennant: Although there's also support among some of those very residents for the treaty. I spoke to the owner of the main trucking business in that community at the time the treaty was signed, and he was all in favour at the beginning, thinking it was very good. I don't know the details, and you certainly do, but I think it's partly the economic climate that would determine the population of that particular village as well.

B. Belsey: I guess the last one…. I got a little confused. Believe me, I find that these days, if I don't come out of a meeting a little confused, I haven't been paying attention. You talked about leaders of the communities, and then you went on to mention the identity of these people. I'm not sure how we got from leaders of the communities to their identity. Could you help me understand that?

P. Tennant: I didn't make any particular connection there. My point is that some of them do have recognizable leaders. Most do. Certainly, in terms of aboriginal communities, some are in very dire straits in this province. They're very small, or they don't have particular resources. They don't have the wherewithal to be meaningful communities. I'm not for a moment saying that all aboriginal centres of population…. Some — and the Nass gives some good examples, I think — are quite healthy communities, able to make decisions, able to negotiate, able to hire consultants and those sorts of things.

In the previous type, it may be very difficult to identify legitimate leadership. They may form leadership, but whether they're legitimate is another whole matter. I think there's rarely any doubt among the others. One knows who the leaders of the Nisga'a communities are. I think the attempt to assume that leaders generally don't speak for those who've selected them is to misinterpret and be somewhat blind to the reality that's often present.

R. Visser: How do you think, if we posed a question about local government involvement…? I'm from Campbell River on the North Island. The aboriginal people, as I understand it, don't necessarily think the province should be involved in the negotiation. Do you think they would embrace the notion?

P. Tennant: It's my perception, and I think one could provide evidence for it, that only a certain group, primarily in the south central interior, believes the province should not be involved. Certainly all the coastal groups that I know of don't express any particular concern about the province being involved and in fact recognize the necessity. So I don't think that in itself is a concern. It is certainly a concern among native leadership, elected chiefs and so on — just what role municipalities would have.

There's a practical answer to that. I think the UBCM and municipalities themselves have made great strides in establishing relationships with neighbouring first nations. I know that's in fact the case in Campbell River. So that's the basis to build upon. It's a practical thing that treaties are indeed about local matters in most cases. The non-natives with the most interest are the people who live in that particular area — not provincial politicians, not negotiators, but the people who live in that area. They've got to be neighbours, and talking to neighbours is not a bad thing.

I'm one of those who has been advocating this for some time. I've not met any serious opposition when I've made this point to native audiences, because you can give examples. You know, Kamloops is an example. There's lots of examples; I shouldn't select any out by name. There are some bad examples too, but there are a lot of good examples.

So it's a practical thing: recognizing the value of neighbourliness, which is certainly there in any community, and even this notion I present here that every locality in British Columbia that has both native and non-native populations should see itself as one community with components. The notion of community is something that I think is important for all of us. It's a way of establishing relationships that the previous speakers, for example, are certainly in favour of. They have a slightly different basis for it, but the end result would be the same.

R. Visser: I just want to explore one more thing, Mr. Chairman. I understand the concept locally, because that's how I grew up, and it makes sense to me. The other way we grew up is that every seven days my father or somebody's father or mother would jump into an airplane and fly to Kingcome Inlet and work in the

logging camp there and then fly home after 14 days. That's how we lived. How do you see the Kingcome band being interested in allowing the local government in Campbell River to have some impact on their traditional territories as we move for treaty rights.

P. Tennant: No, no. As I sought to imply, where there are no neighbours…. There are a number of first nations in the province — I think about 20; I once tried to count them — who don't have municipal neighbours. Well, it doesn't apply there. There's no reason. They'd be distrustful, quite obviously. Nass Camp, for example, is not a municipality. That is a community of people who I know are respected by the Nisga'a in a formal sense. Some of them have adopted a Nisga'a tribe and so on. There are good relationships in that sense. In some cases in Kingcome Inlet; there are a couple in the north in that category — they just don't have neighbours. So you don't have neighbours to deal with — but most do.

J. Les (Chair): Maybe a slightly different type of question. In terms of treaty-making, back in 1991 it was assumed that on a best-guess type of basis, there would be about 30 treaty tables…

J. Les (Chair): …or 31 or thereabouts. We're now approaching 50, and we may well be in the 70 range by the time this process evolves. Can you give me some comments on the practicalities of that and the validity of sometimes very tiny groups coming to the treaty table and demanding to enter into treaty negotiations?

P. Tennant: One of the consequences — undesirable, in some ways, certainly — is that a rights-based approach, which is what a treaty-making process is in a legalistic way, cuts a broad swath — and so very small groups. There's one band in greater Vancouver, I understand, that only has one member. Well, that's an easy band to govern and probably very self-governing as a fact. Still the point is that there's a difference between that band and a band of a thousand people in their own community somewhere, and there are a lot of things in between.

There are a lot of small bands in B.C. That's reality. Certainly, I was one of those who expected that the tribal groups, as we then called them, the 31, would stay intact. For a whole variety of reasons, some have and some haven't. The reality among native people is that the local community is the essential base, the essential source, of legitimacy. There's a lot of effort at the tribal level, by which I mean the aboriginal language group, to paper things over and hold things together. Sometimes it works, and sometimes it doesn't. It's just as in a branch of the UBCM. You'll get some unity and in some not. There are differences there.

I do think that the Treaty Commission should be more alert to the capacity and potential of small groups to spend lots of money in terms of the negotiation and what's going to come of it. It's also the case that some of them will simply not get there. That's reality. I don't think lots of money should be spent in those cases or false hopes raised. But I think there is, unfortunately, no way for outsiders to provide meaningful incentive for the groups to stay together. It's just one of those messy realities that we have to deal with. Certainly, I would expect the federal and provincial negotiators to have a certain sense of where negotiation time is best spent.

M. Hunter: Thank you, Dr. Tennant. I think you made a comment that those who take race-based approaches to this show their intellectual paucity, so I'll do that. I do want to ask you a question. I think your proposal in section 1 of your paper, where you're talking about debate and referendum, can be properly perceived as a matter internal to the non-aboriginal portion of our population. I think that is very shortsighted. I don't think you have evidence. You certainly haven't presented it today. If you had, I'd have counterevidence that aboriginal people have indeed had this debate. You referred to a point in your last page that most Indian leaders do not truly represent the views of ordinary Indians. There's certainly evidence available to me that aboriginal communities, as you have suggested, are quite like our own and that not everybody supports our government either. So I take issue with your suggestion that we're dealing with an aboriginal community that is somehow beholden to its leaders and there isn't any independent thought.

M. Hunter: Well, I think you certainly suggested that. So if you want to clarify it, that's fine. I'm also looking forward to Gordon Gibson's rebuttal of your two fundamental founding components argument. I think you've probably had some debate about that.

I want to focus, though, on the point you made about certainty. As someone who comes at this from an industrial and economic development background as well as a lot of the aboriginal rights body of law that's built up over the last dozen or so years, I think you'll understand that certainty is a concept which is extremely important to economic interests in this province — in part the drive from the non-aboriginal side to get treaties in place so that simply put, too simply put, a person who wants to extract resources from the land base of British Columbia knows who the landlord is.

You're saying, as I understand it, that we should abandon this notion of certainty, although you do say only in narrowly circumscribed policy areas such as land, resource allocation and usage. From my perspective, they are the guts — at least a good part of the guts — of this. So what areas of the treaty process would you leave? Would you leave governance? Would you leave justice? Can you just expound on that a little bit, please?

P. Tennant: Yes. As you say, governance and justice would certainly be two of those. There's also a more intangible aspect. That consists of the relationships between first nations and other entities. Just as a municipality has all sorts of internal matters to deal with, it also has relationships with the government, with UBCM, with the national association and even with Ottawa in some ways. Those are things that are important to the governance and operation of a first nation and to its economy but, I believe, don't need to be matters of certainty in the sense that you would like certainty.

I quite agree with you on those elements. That's why I named them. It is true that in that sense, there has to be certainty. Yet at the same time, there are going to be changes. Things happen that you don't expect. What's really important is to have confidence on the part of the industries, for example, that if some crisis happens, they will be able to deal with aboriginal groups, in this case, on a basis of respect and confidence that there will be understanding on the other side of what the issues are. That's what I would like to have certainty about, which is intangible. That's what I think.

To go back to your previous point, certainly there's diversity within aboriginal communities, differences of opinion. Some vote for this candidate; some vote for that candidate. There are certainly those sorts of things. My point is that I think those who assume that the fundamental demands and positions put forward by aboriginals, whether chiefs or negotiators or chairmen of tribal councils, are essentially self-serving and not representing a general desire and interest — not unanimous but a general desire and interest — are missing part of reality. They're, in fact, not seeing community as a legitimate part of what the reality is.

J. Les (Chair): Perhaps I could take a bit of a different approach to this. In terms of treaty-making in other countries, I'm assuming you've probably looked at a number of those other examples: Australia, New Zealand and perhaps others. I think you mentioned the Scandinavian countries. What is available to us in those examples that might be useful?

P. Tennant: Well, I think one example is that treaties don't cover everything that's important. The Navajo and the Papago in Arizona, for example, don't rely on treaties for their exercise of government. There's lots of arrangements in the form of agreements, more with national but also with state governments. There are, in other parts of the States, treaties that do provide a basis. In the States they tend to be narrow documents. They're like the American constitution. They're sparse, but they have a certain amount of substance to them, not like we Canadians. In our constitution — the British North America Act, as it was — we are verbose. We go on and on and on, and we're doing that in treaties too. I guess that's just part of our nature.

Treaties are not everything, but the literal meaning of treaties does matter. That's for sure. That's one reason I'd rather have fewer treaties than more, because you have less to get really hung up on. New Zealand has spent an enormous amount of effort interpreting the Treaty of Waitangi, which was signed in 1844. In fact, the B.C. treaties that we have on the coast were modelled on those particular treaties or purchase agreements. There's been much attempt in New Zealand, on a basis of tribes — they've got a certain number of tribes — to have the tribal issues resolved. There have been some really strong claims that haven't in fact passed. One aboriginal claimed control over broadcast rights, for example. That didn't really fly. You've got some extreme claims and some ordinary claims.

I've worked with a couple of aboriginal groups in Australia, and it's my sense that they see the Canadian model of treaties as a very good thing. There's some talk of treaties in Australia. It hasn't got very far, but at least there's some talk among them.

I'm not sure there's much real guidance for us. We have a treaty process underway here. Certainly, in the rest of the country treaties were taken for granted. Our mainstream majority tribe in B.C. is the odd one out in Canada. Aboriginal groups in this province want to be treated in roughly the same way as other groups were in this country. It's somehow our tribe that thinks we should be different and not subject to treaties.

J. Les (Chair): What are the implications for the rest of Canada that flow from the B.C. treaty-making process?

P. Tennant: If the B.C. treaty process continues and the Nisga'a model is more or less implemented, as I think it will be — there are some bottom-line things that natives are not apt to give up on and certainly some that the government should not give up on, such as matters of no more tax exemption and those sorts of things — then it will be the case that native groups under treaty in B.C. will have better treaties than those in the rest of the country, other than those in the north. The essential difference is that a far greater range of matters is covered — that is, if the Nisga'a model is followed. This would include, notably, self-government as a treaty right. That is not present in the rest of the country, and it is certainly something that other groups would probably want. On the other hand, it isn't as contentious an issue in the rest of the country. Provincial majorities elsewhere are not as concerned about self-government on the native side as some of our mainstream spokespersons are. It's give and take, and things evolve.

J. Les (Chair): The treaties in the rest of Canada have in some cases been concluded several hundred years ago. I would argue that in many, if not almost all, of those cases, the social condition of those first nations is no better than what we find in British Columbia. How do we reconcile that? Often treaty-making is held as being the vehicle through which social advancement

will ensue, and yet I don't see much evidence of that across the rest of the country.

P. Tennant: In my view, treaties are one step along to progress towards healthy communities. But note that in terms of local communities in Canada, the previous speakers quite properly emphasized that municipal governments were perfectly adequate for large numbers of people in this country. What they didn't mention was that no municipality is self-sufficient financially. In various ways they all rely upon transfer of funds from senior governments, more or less. Still that's a major component. Rural communities rely more than large urban communities on transfers from the province and to some extent, depending on the programs, from the federal government. That will not change with treaties.

Treaties are not a direct answer to social and economic problems. They're a step along the way in terms of meeting what really are fundamental demands for respect, for recognition of identity, which I think does motivate a great majority of aboriginal persons. The treaties are a step on the way, but they're not the answer. They don't provide all the answers.

J. Les (Chair): So what, then, has been the failure in the rest of Canada, given that treaties have not produced a better social condition amongst aboriginal people? What has been the barrier?

P. Tenant: Oh, I think the barrier has been a whole range of things. It's common worldwide among indigenous peoples that in terms of the new, different, usually European colonizers who come along…. The values are different. There's a huge range of diseases. Education programs don't work, because their values are different. That's one factor. That's one reason residential schools didn't work. A British residential school would work quite well. It produced a certain class of person and citizen. The same methods were tried here, but they didn't work, because they were working with a different identity, a different group.

So to my mind there is certainly lack of incentive. I agree with some of the things that were said previously — that incentives have not been there. There were attempts, for example, in Alberta. In fact, the principle in the prairies was that reserves would have the same amount of land as white settlers would have. So an Indian family would have a square mile if a settler's family would have a square mile. In fact, the federal government, through the Department of Indian Affairs, inhibited the ability of natives to turn to agriculture, even though a number wanted to. There's that sort of thing, and the fact that the coastal natives are generally better off than the interior natives of B.C. is because of the economic opportunities that are there, the fisheries and so on. It's a range of things. Treaties, as I say, are simply one step. It's a case, I think, where politics is more important than economics. Politics is a precursor of adequate economic development.

E. Boyanowsky: Excuse me, Mr. Chair, but I didn't get a chance to respond to something that puzzled me.

J. Les (Chair): Okay, hang on. I'm not sure if it's appropriate. First of all, if you're not at a microphone, Hansard can't pick you up, in any event. I want to maintain some order, if you don't mind. So let's just leave it at that.

Our next speaker is Gordon Gibson, and I propose that we now turn to him — not that I don't want to hear from you, Ehor.

E. Boyanowsky: I just had a clarification question. That's fine. I can ask Paul.

J. Les (Chair): There's a hallway out there, and I'd suggest you duke it out if you like.

G. Gibson: Mr. Chairman, thank you for the opportunity to appear before you. I want to express particular pleasure in the company in which I present today. The witnesses before you will have their differences in recommendation, but I know every one of them, those who have testified and those who are yet to come today. Without exception they are people with a very great intelligence and a very deep concern for all — and I underline "all" — British Columbians. It's an honour to be in such company.

My presentation will cover, first of all, the need for a mandate, and I refer to Paul's comment about the debate we've never had on what he called the MMT — majority mainstream tribe. Paul generously said that he had changed his mind with respect to some things I said. I want to pay him that same compliment.

I will cover the need for a mandate, a definition of what I see as the basic problem, an analysis of that problem, some comments on claimed rights, some comments on federal-provincial issues, the implication that all of the above have for the framing of the referendum question. I will be bold enough to present you with a couple of recommended questions. I have given the Clerk my notes for this presentation. I apologize that they are not in polished, literary form — this was pretty short notice — but it lays out most of the topics.

First of all, as to the importance of what you are doing. In my opinion, this is easily the most important moral issue in British Columbia public policy today. It is arguably the most important economic one as well. The committee, in its mandate, addresses the major portion of those questions. It is, in my opinion, a great educational opportunity for the people of this province. If the referendum process does nothing else but educate all British Columbians on this issue, it will have been a great success.

Secondly, I want to comment on the importance of history. Many of those who reject the treaty process say that history is over, that it's not important, that we must look to the future. A couple of comments. To aboriginals, history is central. I'll use the term "identity"; it's central to identity. If it's central to one side of the table, it's got to be recognized by the other. It's important for everyone, notwithstanding the usual arguments, the usual arguments being: I wasn't here; my ancestors weren't here; the statute of limitations should apply to something that's a hundred and whatever years old; Pierre Trudeau's famous remark that you can only be just in your own time and that you can't do anything about the past. All of those are good points of debate, but that is not the law. The law is that there are outstanding questions of aboriginal rights which have to be resolved. Arguably, those are good debating points, but that is not the negotiating reality. The negotiating reality is that if you want to settle these questions, you have to talk about history.

The first purpose of this referendum is to legitimize what is otherwise a very controversial process for those who say history doesn't matter.

I want to make a comment about the importance of law as opposed to treaties — in other words, the option of going to court on everything. Law, in my opinion, governs far too much in aboriginal questions. We have in the constitution sections 91(24), section 35 and section 25 — which, incidentally, is a little-used section that is going to be a sleeper. From 1982 on, as a result of the constitutional amendments, we have the position of the Supreme Court of Canada as the supreme lawmaker on Indian law. Very few Canadians realize this. Parliament is no longer supreme. In the making of Indian law, the Supreme Court is supreme as a result of the 1982 amendments.

Injunctive relief is a commonly used element of resolving temporary disputes — blockades and the like. The virtue of the law is that it eventually delivers an answer, but the law has some serious defects. The answer is often Delphic and subject to myriad interpretations as, say, Delgamuukw is in British Columbia today. When it landed on the treaty table, Delgamuukw was obviously a hammer of such power that everybody looked at it and just walked away from the table for a while, figuratively. Nobody knew then and knows yet what Delgamuukw really means.

Or the answer can be just plain wrong, as in Marshall 1, the first decision on the lobster case in the Atlantic coast, which of course was revisited in Marshall 2 to the embarrassment of the court.

Law is a blunt instrument. It produces winners and losers. It is slow. Worst by far, legal decisions are restricted to narrow questions; they are not integrated with overall social policy. We are dealing with an overall social question. Where the treaty process allows agreements to replace the fiat of judges, I think that's a good thing.

The treaty process also has the extraordinary feature that it can trump the constitution. It can replace things that are in the constitution if the parties agree. This is a useful feature in some aspects of the B.C. negotiations. Therefore, a mandate is needed.

I want to represent to you as a committee that the treaty process, however, has some major defects, and I hope you may see fit to mention some of these in your report on the referendum.

First of all, it mainly deals with Indians on reserves. It doesn't deal with aboriginal people generally, which is a larger category than Indians. It fails to appreciate that the reserve system has clearly been a dysfunctional approach in the past. The hope that through the treaty process this can be made better — there's much room for skepticism there, in my view.

It mainly ignores urban aboriginals. John Richards at Simon Fraser University estimates that there are about 38,000 aboriginals in the lower mainland. Compare this number with 2,200 Nisga'a on the Nass lands. Yet virtually all of the attention of the public went to the Nisga'a treaty for the past couple of years and virtually none to the state of aboriginals in the lower mainland. So the treaty process seriously diverts the resources away from a very large group of aboriginals and perhaps the most promising future, which may well be in urban areas rather than rural areas.

My conclusion on the mandate. At a minimum, the treaty measures must not negatively distort the individual choice for the alternate urban solution among the Indian people. Interestingly, the Supreme Court of Canada, in a case known as Corbiere, gave a major impetus to this point of view a couple of years ago by giving off-reserve Indians the right to vote in all band elections. This is significantly changing the balance of political power in band governments these days.

There's an important note, if you accept my notion that treaty measures shouldn't negatively distort people's choices to move off-reserve if they wish, and that has a major cost implication for governments, though in the longer term historical experience suggests major cost savings.

The second part: the problems. For Indians the problem is a horrendous average socioeconomic outcome. There are good examples, and there are horrible examples, but the average is not good in terms of socioeconomic outcomes. There is an ongoing sense of injustice which inhibits getting on with life. For the rest of us, the MMT, there are ongoing direct costs which are very large — the Department of Indian and Northern Affairs, and so on — estimated at $7 billion a year, though this shouldn't be exaggerated because there are a lot of provincial-type expenditures in there. There are also very high indirect costs such as legal costs, compliance costs and the opportunity costs of not being able to get on with the economy.

So there is room for a win-win here, especially since, in my opinion, there's no real conflict of cultures. The overlap between aboriginal and non-aboriginal cultures in Canada is at least 90 percent — probably higher than that if properly measured. We're not really fighting about a lot of things. But the results of the treaty process have been woefully inadequate so far, and in my opinion, the root causes include a lack of

mandate, which you are designed to tackle, a lack of clear analysis, which hopefully your hearings will elicit — and the same with a lack of public understanding — and a lack of honesty. Watching this process for the past eight years, there has been, in my opinion, a significant lack of honesty from governments on this issue, and it looks to me like it's changing. The next root cause of not reaching treaties is very highly differing expectations on the two sides of the table and, finally, capacity problems. Each must be tackled. The referendum process has a place in improving all of those items except the last — lack of capacity.

Analysis. Why do we have these problems? I want to suggest a root cause, and this, I have to tell you, is 180 degrees away from the conventional wisdom in the Indian industry. Overall, I say that history has locked us into a pattern of treating indigenous peoples differently from other human beings. This is also the case with two other great immigrant societies evolving from the British rule, namely the U.S. and Australia.

In Canada the problem is more intractable and the actions of the government more circumscribed, because the treatment of Indians as different from ordinary human beings in law and in social and economic policy is validated and in some cases required by our constitution, which to that extent may properly be called a document with a racial component. I very much appreciate Paul's statements about "charged words." I thought very carefully and put that as neutrally as I could. Section 91(24) of our constitution gives the federal government authority over "Indians and lands reserved for the Indians." That's an extraordinary thing to have in our constitution. It would be interesting to know what Martin Luther King or Nelson Mandela might think about that.

In any event, absent constitutional change — which we needn't expect in the near future — the challenge is to make the best of what we have. The beginning point for the analysis must, in my view, be the insistence upon the equality of every human being in terms of civil, political and human rights. There's a lot of history to overcome. When our constitution was written, 1867, the world of that day was racist, sexist and bigoted. Indians were thought inferior, and so were Chinese, women and Jews — even Catholics. One hundred and thirty-some years later, women, Chinese, Jews and so on are part of ordinary society. Indians aren't, and I suggest to you that that is because they have the defect of being mentioned in the constitution.

Since 1867 Indians have been subject to the centralized and remote administration of Ottawa, as has the fishery in British Columbia. The results in each case have been similar in the sense that the decision makers don't live with what they're deciding. Since 1867 this division of authority has given rise to continual federal-provincial squabbling and offloading.

A second root cause, I say, is the Indian industry. This is that fairly large group of people which includes Indian elites and lawyers and consultants and bureaucrats and some academics who have a vested interest in maintaining Indians as a different class of human beings. I am not casting any aspersions whatsoever on the motives of these people. What I'm saying is that their status and income depend upon the continuing existence of an Indian question. That impacts some people — not all people, but some people.

Finally — and this is a philosophical comment — the subjugation of the individual to the collective by the rule of law, which is the case of Indians vis-à-vis the tribe as a result of our law, is in my opinion an important component of the ongoing situation we have. So my firm belief — and again, this is revolutionary, and it shouldn't be — is that every human being is equal in political rights and should be so treated, absent clear constitutional requirements to the contrary, and there are some of those. The conventional solutions over the years have included education, which is an unalloyed good in principle, though often lacking. The way it was carried out in residential schools is the huge example of that.

Health and social policy. Spending a lot of money in those areas is traditionally a good thing to do. It has had its problems, but more than that, welfare dependency has come to be a trap, which in this field is an extremely powerful barrier to development.

The provision of cash, land and resources to the Indian people is a time-tested solution, the more so with treaties in the rest of the country. It hasn't worked particularly well by the results, and I would argue it's unlikely to. One of the questions in the previous panel referred to whether inheritance-type wealth, or just simply having the ownership and resources, is the key to things in this current day. It's not. Education and hard work are the keys to progress in the modern economy. This is not an argument against further cash, land and resources being provided in British Columbia. They will be provided; that's the law. But I'm saying that's not the solution, just as subsidy and economic development haven't worked out well. The third great conventional solution is said to be a third order of Indian government, and I will have more to say about that in a moment.

What are the roadblocks to agreement in the treaty process as we have seen it to date? In the 1970s after the Calder case was decided by the Supreme Court, in which the governments very nearly lost on the question of Indian title, it so shocked the federal government that they decided they would have to negotiate treaties with British Columbia Indian bands and tribes. They laid down one firm rule. They said: "We will talk only about the future; we will not talk about the past. We will talk about awards of land and cash in the future and we will talk about governance, but we will not talk about title and we will not talk about compensation for the past." That was simply their position. That was a unilateral decision. The talks went for many years.

The Indian side of the table always said: "We want to talk about compensation. This is central to us. We want to talk about title, because we say this is our land." The government has always said no. Then along comes Delgamuukw, and the justices say that Indian

title exists and that compensation for infringement is due. Governments have not yet reconciled themselves to that fact — neither the federal nor the provincial government. I say they must, or further progress won't be made.

There is a misunderstanding on the balance of power on both sides of the table. Broadly, the public very much underestimates the strategic position of the Indian side of the table. On the other side, the Indians overestimate their position. That's a very broad statement. There are cagey negotiators on both sides, but there's a gap in expectations which, I have to say, is wide enough at the table but grows to enormous proportions in the public sitting behind the negotiators. That too, it seems to me, is part of the role of this committee: to try and narrow that gap in expectations.

A barrier to solutions is what I call the "forever problem." When you constitutionalize a treaty, you're making a decision forever. That's a terrible burden. As I said to one of the committee members at lunchtime, how many of us would get married if it was forever and ever and ever and there was no escape clause whatsoever?

But here's the point: it would have taken a lot longer to come to that conclusion if that was the deal.

There's what I call the "package problem," which is the principle in most negotiations that nothing is agreed until everything is agreed. That flies directly in the face of the recent calls, such as the report of the B.C. Treaty Commission last week, for interim measures. Interim measures are a good idea. Small steps are a very good idea. But we can't overlook the fact, in the negotiating stance, that the arguments against interim measures and in favour of the package, from the government's side, are very strong.

The government can logically take the position: "If there's never going to be an end to this, if there's no pressure for a final agreement, there never will be a final agreement. Therefore, we will never get the certainty we're looking for." Those are the kind of tensions. I suspect that the only way around that is going to be to pay a lot of money. That's not necessarily bad, as I will come to in a minute.

Both sides receive a payoff from delay in the final settlement in different ways. For the Indian side of the table, the downside is growing debt, but it also may result in better terms. From the government side of the table, it delays a great political fear, which is what the public is going to think of the size of the settlements when they eventually have to be made.

Those are the roadblocks to agreements. The roadblocks to progress after we reach agreement are a couple of these. Individual choice is the usual engine of human development and prosperity. Treaty settlements normally result in collective assets and pervasive government, and that makes individual choice more difficult. That is particularly the case with Indian women, according to testimony last week before this committee.

Then there's the question of individual choice by Indians who have decided to leave the reserve for the mainstream economy. Often they're without essential platforms such as education and context to build upon, and there's always the continued siren call of the reserve. The urban cohort is very large: 49 percent of identity aboriginals and 42 percent of registered Indians live off-reserve. All of these things are roadblocks to progress; all of them can be addressed.

I want to speak now about rights. As Paul said, treaties are, at the bottom, a legalistic process, and they're concerned with rights. There are three claimed classes of rights: property rights, a right to an ongoing subsidy or subvention and the right to self-government.

Property rights are the easy ones. Property rights have been clearly conferred by Delgamuukw. We don't know what size they will be eventually. I think they will be very, very large. I think the property rights that will be settled in the end will be billions of dollars and a major fraction of the land mass of British Columbia. I say that under certain circumstances, that should not be seen as a large problem. It could, in fact, be seen as the partial privatization of our forest resource. But if we're going to do that, I think a very important principle for the negotiators to adhere to is that the transferred cash and lands should be an ordinary part of the economy, subject to regular taxation and regular government rules.

The issue arises of individual entitlements as distinct from collective entitlements in these treaty settlements, which has been mentioned by several speakers. I think this is an excellent question, but I also suggest that these are not proper subjects for a referendum. They're proper subjects for negotiating trade-offs. In terms of a referendum, for example, I think that the rest of us have no business seeking to dictate to bands how they will distribute their settlements.

The issue of continuing subsidies. They are real; they are large. They are unlikely to be diminished by the treaties. The public should not expect that they will be. The Nisga'a annual subsidy went up as a result of the treaty from $30 million to $33 million — the extra $3 million being to pay for self-government — and will escalate in the future. Ongoing subsidies — and the point was made that they go to municipalities as well — are both a crutch and an instrument of control. They are to be deplored by both sides. Finding ways of replacement by "own funds" in terms of cash settlements is a good thing. This is mainly a federal issue.

The provision of subsidies to persons rather than governments could be a major advance in accountability. There is $4.9 billion in federal funds going to chiefs and councils every year for ongoing expenditure. What

would be the situation if a major fraction of that money went instead to individuals? The inherent problems of a guaranteed annual income arise. The question of taxing back the money by the band governments arises. It's a fascinating thing. It could be the subject for a referendum, as the subsidy funds are provided by the voters in a referendum. The difficulty is that the government providing these funds is not holding the referendum. Again, I would say that is not an appropriate issue for the referendum you are considering.

Governance under treaties is a very central issue. It is probably the largest single concern of the electorate. Some of the survey evidence I have seen done by Angus Reid, and these are exceedingly high numbers, is that 80 percent of Canadians believe there ought to be political equality among Canadians after treaty settlements.

Differential citizenship rights. Different rights to different kinds of governments among Canadians can also be a danger to aboriginal Canadians. This is pointed out by no less a scholar than Alan Cairns, who has a history of being very sympathetic and very insightful in respect to the aboriginal cause in his writings — one of Canada's pre-eminent political scientists. He's just finished a book called Citizens Plus, which I would commend to your attention. I would commend, as well, a recent exchange of letters in the publication Inroads between himself and Tom Flanagan, who, of course, are on very different sides of the street on these issues. Cairns makes the point that if Indian communities evolve a citizenship which is too widely split or seen to be split from the ordinary Canadian citizenship, they will at the same time lose the political and economic support that will make life better. So this is a challenge.

Balkanization is a word that is often heard in respect of self-government. Balkanization is a bad thing, but decentralization is a good thing. Subsidiarity is a good thing; government closer to home is a good thing. So I suggest to you that there are a lot of trade-offs and a lot of good things about Indian government and local government that should be recognized in this process.

The concept of the inherent right. This is a claim of the Assembly of First Nations and of many philosophers and academics: the inherent right to self-government. I'd like to spend a moment on that. There can be no question that individuals have an inherent right of self-government. Does a collective have an inherent right of self-government — a non-sovereign collective? I invite you to reflect on that.

The rights of collectivity, it seems to me, come from two sources. One source is delegated upwards by its members. I am a member of a society. I agree to the way the board of directors is elected and so on. I agree to the powers of the society. Of course, a society is normally one that one can resign from or join.

There's the conferring of power on the collective by the coercive power of the larger society. The union shop is an example of this. Legislation in some provinces, most provinces, gives the ability to have collective agreements which require that workers join a union, thereby giving coercive power to a union. This is a controversial thing, but it is a specific example of the delegation of coercive power by the larger society. Is this appropriate? Is this kind of delegation of coercive power appropriate across the entire political range of a government which, in fact, is more than a local government?

I invite you to try what Albert Einstein used to call a thought experiment. Consider two newborn Canadian babies. One is an ordinary kid. Charter of Rights and Freedoms and so on. The parents look after them unless the parents make a mess of it, in which case the state steps in. They live an ordinary life in an ordinary economy and so on. The other kid is an Indian kid. According to us, according to our laws, this kid grows up with a different set of legal incentives, a different set of economic incentives. The thought experiment I invite you to do is: what is our moral right to impose this as a coercive thing, not as a voluntary, chosen thing of the parents? It's a deep question. I continue to wrestle with it myself. It is conceivably a proper subject for a referendum, because the coercive power of Indian governments can only be conferred by the delegation of the coercive power of senior governments, unless the Supreme Court of Canada finds that there is Indian sovereignty and a third order of government in the constitution and requires the conferring of constitutionally based coercive power.

Mr. Justice Williamson, in Campbell, in the Supreme Court of British Columbia found a corner of sovereignty that in his view was not delegated by the former British rulers of British Columbia to either the federal or the provincial government, which he said endures and is sufficient to justify the Nisga'a treaty. That's what we know about the Supreme Court level in British Columbia law. The Court of Appeal in British Columbia said definitively in Delgamuukw — and the Supreme Court did not contradict this and simply overturned the whole decision — that the federal and provincial governments between them exhaust all sovereignty. The Supreme Court in Pamajewon said arguendo — which is, I gather, an expensive lawyer's talk for the sake of argument — that if self-government does exist, it is a very limited scope. So we don't know a lot about this yet.

I want to say something about small governments with large powers. The average band size in British Columbia is 700 to 800, of which roughly half will live off-lands. There is an analogy with municipal government. Many of you, having been in municipal government before, will know Gerry Furney, the mayor of Port McNeill, who is a very thoughtful man. I was being devil's advocate one day, and I said: "Gerry, you're concerned about the small Indian governments. Your community's only 3,000 people. Probably only a thousand of them vote in an election. What's the difference?"

The answer he gave me was really a great education to me. He's such a wise man. He said: "You know, Gordon, look at the power I have over people. I can maybe not fix a pothole in front of their house, but I

can't refuse to pick up the garbage. I can't give somebody a job; I've only got four jobs to give out. I can't have any influence over their welfare package. I don't have any housing to provide. There's not an awful lot I can do." But a band government has power over jobs and often quite a lot of them. It has power over distribution of this $4.9 billion in funds that I've said flowed from the taxpayer. It has power over housing and welfare. Does the kid get a special scholarship to university, and so on?

A concentration of large power in a small government, I think, is something to worry about because of human nature all around the world. Even with accountability and transparency of the sorts that Minister Nault is trying to introduce now, a government with large enough resources in a small population can come to control the people rather than vice versa, which is the way it ought to be.

All of the above said, the essence should always be individual choice. It would not be right for anyone else to say there should not be Indian governments, because that choice has to be open to the individual. Therefore, and as a result of historic responsibilities — which, in my opinion, are moral not legal — the option of Indian governments on Indian lands must be preserved as long as a significant number of people want it.

Federal-provincial issues. I think we've not heard enough talk of this. Who pays and who controls? Traditionally, provincial governments have wished to wash their hands of any financial responsibility for Indians. This is fundamentally inconsistent with the need that off-reserve Indians have the greatest opportunity to be ordinary Canadians. Provincial governments have to accept that responsibility, and it won't be cheap. The cost of settlements, as I said earlier, may be very large.

British Columbia in 1993 signed a memorandum of understanding with the federal government roughly saying they would split 50-50 the costs of the treaty process. The cost of the treaty process at that time was thought to be between $5 billion and $10 billion. We now can be quite sure it's going to be a great deal more than that. I say that this memorandum of understanding has to be reopened and that British Columbia has to call upon the federal government to honour term 13 of the Terms of Union of 1871 as stipulated by order of the Privy Council in 1924. I won't go into the legalities unless you're interested, but the deal was that as of 1924, British Columbia had done all it had to do in respect of aboriginal issues, and it was up to the feds after that. To me, this is an appropriate subject for a referendum question to give our provincial government the strongest possible negotiating hand with Ottawa on this very important dollar subject for this province.

One other thing about the federal position on past treaties — and it's quite interesting — is that we currently have, in northern British Columbia, Treaty 8, which covers most of the oil and gas lands in the province. This is one of the treaties that's in place in British Columbia. It's turning out that the fact that there's a treaty there doesn't make a whole lot of difference as to whether or not there's legal certainty in the ease of exploiting these oil and gas lands. The federal government is again, as it turns out, washing its hands of this issue. That's a problem for the province.

Implications of all of the above for referendum questions. I'm sorry. I've gone on five minutes longer than I should have, Mr. Chairman. I'll just be another couple of minutes.

G. Gibson: The referendum questions, if answered in the affirmative, should in my opinion confer the following mandates: a mandate to negotiate treaties in settlement of claims, a mandate that fully recognizes rights conferred by the constitution and a mandate which should, as a goal of negotiations — not something you can never be sure of but as a goal of negotiations from the provincial point of view — achieve the political equality of all British Columbians in all other ways. The mandate should allow negotiators great flexibility in timing and details to reaching that end. I don't think you should try and tie their hands too tightly. The mandate should pronounce clearly on the responsibilities of the federal government vis-à-vis B.C. In my opinion, the mandate should not include any attempt to cap land and cash awards. The courts would disallow that in any event. I do not think it should try to require that settlements should be made with individuals rather than the collectives, the bands. I think the courts would disallow that too, although nothing precludes British Columbia from making those proposals in negotiations. Any question which attempted to impose a requirement that Indian government have no greater than delegated municipal status also could well be set aside by the courts.

Similar considerations apply with respect to the prospect of non-Indian voters having the right to vote for the members of those parts of Indian governments which are broadly political, as distinct from those powers of Indian governments which are simply management of Indian assets…. Again, while this is very controversial in Nisga'a — the few non-Nisga'a on the lands don't have the right to vote — it becomes a far greater problem when one gets to, say, Westbank. It's a proper negotiating stance for the provincial negotiators, but I have my doubts whether it's a proper referendum question.

So my bottom line — recommended and possible questions — is two recommended questions: do you give the government of British Columbia a mandate to negotiate full, binding and enduring settlements with the Indian people of British Columbia, based on the equality of all Canadians except as varied by the special rights of Indians under the constitution of Canada? That question says, in essence: do you have as your ultimate goal a society where all Canadians are equal in political terms, realizing that Indians may have some special rights that preclude this being fully achieved and understanding, as well, that Indians most defi-

nitely have some special property rights? Beyond that, equality before the law should obtain.

The second question: do you give the government of British Columbia a mandate to negotiate such settlements with the government of Canada based on the responsibilities of the parties under the constitution of Canada and the Terms of Union, 1871?

So those are my two recommended questions. You will no doubt wish to consider other questions which ask British Columbians about their preference — about preferences for forms of self government, about preferences for forms of distribution of proceeds, the right of non-Indians to vote in Indian governments. In my opinion, the government of British Columbia has all the mandate it needs in those regards from the voters in the last election campaign, and the asking of these questions, whose answers might be non-achievable as a matter of law, runs the risk of further widening an already wide gap in expectations.

J. Les (Chair): Thank you. That was very interesting. Maybe for openers, Gordon, if you don't mind, you mentioned section 25 and the fact that it might be a sleeper. I'm not sure if I'm up on that. Could you elaborate?

G. Gibson: Section 25 of the Charter of Rights and Freedoms makes it clear that the Charter does not apply in any way which would offend traditional aboriginal rights. Nobody knows what it means. The court has refused to consider it so far. But it certainly means something. Section 35 has turned out to mean something very different than what the framers of the section meant — an example of my contention of what the court says is law in this area.

J. Les (Chair): Another concern I've had for some time…. I'm not sure that it touches directly on the referendum question; however, I think it needs some illumination somehow. If you look at the Nisga'a treaty as an example and all of the overlapping areas and shared areas of responsibility in a lot of different areas, my concern would be that we eventually end up with a province that is as administratively constipated as it's possible to imagine, to the great detriment of us all.

G. Gibson: I very much agree. I used to say of the Nisga'a treaty: "I don't really care whether Joe Gosnell runs the forests or whether Glen Clark" — as it was then — "runs the forests. But I don't want them both running the forests, or it will be a mess." So I think clear delineation of responsibilities is important.

There's another clause in the Nisga'a treaty that is a potential nightmare, which says that any new statute of the government of British Columbia which might in any way impinge upon the subject covered by the Nisga'a treaty must be a matter of consultation. Wow! Even with just one treaty — wow. With 60 or 70 or 80, you've got yourself an impossible problem.

B. Lekstrom: Thanks for your presentation. Just a question relating back to page 14 in your document — item 23 on past federal treaties — and a concern that I have. I'm from northern British Columbia, and I see the issues facing our oil and gas industry right now. We're in an area that Treaty 8 covers, a signed treaty agreed to, which just celebrated 100 years. It's not working. In all honesty, we're facing economic situations that have dire consequences for the province. Maybe a comment regarding…. If we should we reach settlements, whether it be five or ten years down the road, do you see any finality that 20 years from today we won't be back addressing the situation similar to what we're facing in the northeast of our province now: a treaty territory that really isn't working?

G. Gibson: I think the only finality in the circumstances comes out of prosperity and harmony. The reason that the Halfway River band and others — I'm reading minds here; forgive me — are making use of the clause in Treaty 8 with respect to the right to hunt and gather as formerly, claiming that seismic lines and so on disrupt that process, is because they don't think they have a fair deal in this world. In my opinion, it doesn't have a damn thing to do with the oil and gas industry. It's an element of leverage, so it's being used by people who think that their outcome in this world isn't fair. It's just another example of how I think our goals should be, as much as possible, to design everything so that the outcome will in fact be fair, and we don't get to these things. If outcomes are not fair, no matter what language you put in what treaty, you're going to have this kind of situation.

B. Lekstrom: Just a quick follow-up, if I could — and thank you. I'm no expert in the field, but with the Delgamuukw decision, would you see the possibility for Treaty 8, for instance, seeking to reopen and renegotiate full terms under their treaty?

G. Gibson: If I were an Indian leader in other parts of Canada, I would be looking very, very closely at British Columbia settlements. If I saw major advantages that were not open to my group, I would commence litigation and other action having to do with the honour of the Crown, saying that the honour of the Crown demands that you treat all aboriginal peoples equally, that it's clear that you fleeced us 100 years ago and that we want this reopened. This is just human nature; this will happen.

G. Trumper: Thank you for your presentation. I'm sort of going to just ask a question which really…. I'm not sure if it's outside the scope of this or not. In the time that you have spent on this whole issue, have you looked at other ways of dealing with this issue, in other countries? Do you have any comments on how they've

dealt with it in Australia or New Zealand — whether they've got benefits, even though we've got something in our constitution?

G. Gibson: Only very superficially. I would echo something that I think Paul said earlier on: that these things tend to be very site-specific and very local. Particularly, the fact that in the United States Indians are only mentioned twice in their constitution…. One has to do with how members of the House of Representatives are elected, how many are assigned to each state, and the other has to do with trade and commerce with the various tribes. The law in the United States is clear: Congress is absolutely supreme in respect to Indian law.

That just isn't the case here. Here the Supreme Court is supreme in respect to Indian law, and the constitution. Australia is more or less in the American position. Once again, their government can do pretty well anything they want with the so-called aborigines. It's more a matter of public opinion than anything else.

When all that smoke clears, it seems to me what's really important is to recognize history and then say: "What is the right thing to do here? How do we make things better for everybody?" We get so damn tied up with these legalities. It just goes on forever and ever. It's part of bargaining power. I understand that. But there's also been…. I'll come back to that word he used earlier…. There's been a distinct lack of honesty and of people sitting down and saying: "You got this, and I got that. We both know that. Where are we going to go?"

It's a well-known fact that the federal-provincial negotiators come to the table severely constricted as to mandate. The real decision-makers are hundreds or thousands of miles away — hard to have a real good talk that way.

M. Hunter: Thank you, Gordon, for your very thorough, thoughtful and interesting presentation. I've got lots of questions, but I'm going to limit myself to three, which I'll put to you all at once and ask for your comments.

First of all, on the forever problem — and I really hope that doesn't cause you trouble when you get home. [Laughter.] You're not the first to have made this observation today. How do we get out of this conundrum, as I see it, that the aboriginal treaty rights are hereby recognized and affirmed? We do a treaty, and section 35 applies. We've got a forever problem whichever way we look at it. Are you suggesting that there might be a way out of that conundrum? That's the first question.

The second question is with respect to the first of your two recommended questions. I guess the problem I see, Gordon — and I'd like your comments on it — is you say "except as varied by the special rights of Indians under the constitution…." The problem is that we don't know what those rights are.

M. Hunter: So how can you ask people to accept the special rights when you're basically, I think — and I'd like your observations — asking people to buy a pig in a poke by asking that question?

The third area I'd like to ask your opinion on is…. You talk about — and I heartily agree — the issue of individual choice being the way in which human society tends to progress — my words, not yours. I can't find the reference. I put it a different way. I say that the Nisga'a treaty is twenty-first century communism, and I don't like that. I don't like it because I believe, like you, that individual choice is the answer. Then you go on to say that we shouldn't be asking that question because it impinges on aboriginal people's points of view. Have I understood you correctly? Do you think that we should not be asking a question about whether or not British Columbians want to see individual initiative — the right to go broke — put in a treaty, as opposed to an approach of communal economic development?

G. Gibson: Well, thank you for the questions. On the forever problem, I think you do want some things crystallized in the constitution, and that, essentially, is property rights. So the questions of who controls what, who's the administrator, who's the beneficiary, what are the boundaries, and so on, are forever behind us. It seems to me that's good for everybody.

I think the thing that you don't want cast in concrete, at least until you've got a lot of experience with it, is the particular form of governance for a particular tribe. It would be like saying, whenever the Municipal Act was first passed — and I'm not an expert, but I suppose it may have been a hundred years ago — that this Municipal Act is in the constitution. I think that would be a mistake. So that's how I would split that one up.

The wording "except as varied under the constitution." Is this trying to get people to buy a pig in a poke? I don't think so, because it's simply a recognition that we don't know the fullness of Indian rights under the constitution. We are saying that except for that — whatever that may be — the goal of the negotiators should be towards political equality of all British Columbians. This allows the negotiators to sit down and talk and say: "On this particular court case about this particular right, we both have to guess as to our chances of prevailing. Why don't we saw it off like this?" That both preserves the negotiators' flexibility and gives some chance of getting constitutional questions solved by agreement rather than courts of law. They still might be solved by courts of law in the end, but it gives the negotiators a direction in which we say they ought to be going and in which the Nisga'a treaty did not go. The Nisga'a treaty did not push towards equality of opportunity for all British Columbians, other than as required by the constitution.

M. Hunter: So the model that governments are advertising, an exchange of existing aboriginal rights for section 35 protected treaty rights, is one you fundamentally disagree with. Is that right?

M. Hunter: Lead me through this again, then. The current modus operandi is to say, at least to those of us in the so-called third parties, that these special aboriginal rights will somehow be defined and exchanged for treaty rights through the treaty process. So in the final treaty, as in Nisga'a, there are no special rights left; they're all exhaustively set out. That's the idea.

M. Hunter: So you're saying that that model — I don't know if I'm putting words in your mouth — is preventing us from getting to the issue of political equality.

G. Gibson: What I'm saying is that the Nisga'a resolution of the governance issue, I think, was an incorrect one. I think our negotiators could have achieved a better result, both for the Nisga'a people and for the people of British Columbia, had they had this kind of directive and had they had some understanding of how passionately the people of British Columbia feel about this issue. I guess that's what I'm saying.

I'm not questioning the basic balance of power and the trade-off, which is: here's a bundle of undefined rights under section 35, and here's an ability to make an agreement and get rid of the uncertainty. That's still the balance of power. But the going-in instruction to the negotiators from the people of British Columbia who choose to vote on this referendum is: "Get as close as you can to equality — okay?"

J. Les (Chair): And if there is a pig-in-a-poke aspect to it, it lies on both sides of the equation, really?

G. Gibson: Yeah. We are explicitly, in the question, recognizing that there are some things that are unknowable about what you're being asked to decide.

There was a third one, which was the toughest one, which I'd just as soon not answer.

M. Hunter: That was the issue of individual choice, as recognized by you as the preferred way of operating, saying "Don't ask the question."

G. Gibson: I guess what I'm saying is that how Indian collectivities choose to organize themselves, I think, has to be up to them. I'm not saying it's none of anybody else's business; I'm not saying it's something we should be indifferent to. I am saying it's a decision for the people concerned. That's my view.

V. Anderson: My comment on the last one is that ownership collectively or individually is one that the Hutterites have very strong feelings on as well. They've struggled with that in some parts of Saskatchewan, for instance.

G. Gibson: Yes. And interestingly, they do that without any external law, without any coercive law enforcement. That's a totally voluntary association.

V. Anderson: The one I was thinking of…. I've heard it expressed this way. Let me try this. In the question about dealing with the historical past and the decisions that we have to make in the present, the relationship of these two with the aboriginal people has been that ever since the constitution of 1867, every government who had opportunity to relate to the Indian people has chosen — either by action or non-action, but with the same result — to deprive the Indian people of the freedom which everybody else in Canada has.

V. Anderson: And we still do that. The governments today are still doing that. So by law, the governing powers have chosen to do that. Even in British Columbia — by inaction of not reviewing the Douglas treaties, for instance, and their implications — the British Columbia governments have also chosen, by ignorance or whatever, to deprive aboriginal people of their freedoms. I'm stating it fairly bluntly, but that's the kind of way I hear both aboriginal and non-aboriginal people describing our situation.

G. Gibson: As a statement of history I would agree with it, and I commend anyone who hasn't read Paul Tennant's book in this area to read it — a great education. One of the things you will learn, for example, is that one of the very first things the new government of British Columbia did upon becoming a province was to deprive all Indian citizens of the vote — one of their first moves. Then there were all the things in the years to come: "You can't see a lawyer about land," and so on. But a big shift came post-war, about 1950, and things started to open up. You started to see the beginning of the end of the residential schools, which were mostly phased out by the mid-sixties. You saw the institution of a welfare system, which was extremely destructive and remains so but was well-intended. You saw the 1970 Trudeau-Chrétien White Paper, which had as its goal the end of all restriction on the freedom of Indians — i.e., the blowing up of the Indian Act and making everybody ordinary Canadian citizens.

I think modern governments have genuinely agonized over this one. Unfortunately, the portfolio of Minister of Indian Affairs, in the federal government at

least, has always been regarded as a horror show and not one that any sensible politician or bureaucrat would want to come very close to. Politicians have just not really wanted to devote a lot of resources to this problem. I think there's a real climate of goodwill, especially among the population. Some of it is engendered by guilt, but it doesn't matter. There's goodwill there. People want to see a just solution to all this. I think the climate for reconciliation, to use that word of the Supreme Court, is much better now than it was, let's say, 50 years ago and certainly 100 years ago.

V. Anderson: I would agree with you that we have the problem of guilt, collectively and individually, that we don't know how to deal with. I think that's something we need to examine, particularly since that is, as I understand it, a point of view that the aboriginal people don't have. They don't have a concept of guilt, so we're working on different wavelengths there.

I think it's important that in trying to find our way through here, we try and find what the real issues are that we're dealing with. You commented earlier on another question — that we're often dealing with the surface issues which are hiding the real issues. Is there a way we can get at the real issues and why we collectively have not been willing to tackle and make these decisions? It wasn't yesterday's government; it's today's government. It has always been today's government that didn't make the decision or else made the one that deprived a freedom.

G. Gibson: If I can just say something en passant. The non-aboriginal community does indeed have a sense of guilt that the aboriginal community doesn't, but the aboriginal community has its own cross to bear in the sense of grievance, which can be as debilitating in its own way. We both have ghosts we've got to grapple with here.

Why aren't governments willing to deal with these things? You've been in politics a long time. I was in it for a long time. Governments look for things that are enjoyable, not for things that are all downside, as they see it. So the game has always been: "Keep the lid on for today, and then I'll be somewhere else tomorrow." That's simply not possible anymore. Again, I'm trying to read minds, and I may be reading them incorrectly, but I see for the first time in this government an inclination to be honest. I've talked with some of the Indian leadership about this, and they see the same inclination. I think that's very refreshing. They agree that there are big differences in what people think the solution is, but they say: "By God, that guy is honest." That's a really big plus.

Can a deal be made? I've had the delight of sitting down with people like Herb George and Bill Wilson, and we'll talk and talk and talk. I'm not trying to pretend we solve the problems of the universe, but there's a lot in common there.

Again, I'm trying not to be Pollyanna-ish here, but I really do think that if the government can believe that the public understands the pressures on it…. Both governments are terrified, knowing the quantum of ultimate settlement that is likely. They're terrified about the public finding that out. The public is going to be pretty upset about the fraction of British Columbia, the billions of dollars that it's going to take to solve this problem. Once you get the public educated about the realities and the true balance of power, I think it's going to be easier to make headway.

V. Anderson: Is part of the education which is happening not because anybody has planned it, but it's coming in that regard? Is it that the public is also discovering that regardless of how big it's going to cost to settle it or how many billions of dollars, the cost of not settling it is going to be far greater not only in billions of dollars but in uncertainty and all the other things that go with it?

V. Anderson: So we're in a caught-if-we-do-and-caught-if-we-don't kind of situation. How do we find our way through here? The kind of question we're looking at is, I think: how do we help find our way through here?

J. Les (Chair): Okay. One final question from Rod, and then we'll have to move on.

R. Visser: I just want to go back to the notion of individual choice for a second. I think all of us would argue that…. It may be a truth that it's taken western, liberal democratic societies generations to get to where we are today, to the place where we understand individual rights and freedoms. But do I have it right that you're saying in some of this that we need to be patient with how first nations come to terms with that from their collective perspective?

G. Gibson: What I'm saying is that my respect for individual choice extends to the limit of saying that I also subordinate my individuality to the collective. As long as that's a voluntary thing and not imposed as a result of external incentives by others, I have no difficulty with that at all.

Again, I don't want to put words in Paul Tennant's mouth, but I think he and many other philosophers would say: "Besides, when you talk about questions of individual identity, their relationship to the collective is a central, fundamental part of their individual identity, and therefore the collective does, of itself, have some merit."

Now, I argue the difference — that collectives have no freestanding merit, that they only have the sum of the merits they have in their individual adherents and that it's not the business of outsiders to judge that. It's a

really good discussion point, and to the extent that you can leave the resolution of that particular problem up to individual choice, you've got it solved.

V. Anderson: Not a question; a comment to follow up. An analogy is that in our recognition of marriage, you both subjugate yourself to the collective and are required by law to do so even if you don't want to.

G. Gibson: Quite so. That's certainly the way it works in my marriage, I want you to know.

We will take a three-minute break to fill our coffee cups, and then we will listen to Phillip Eidsvik.

J. Les (Chair): I'm going to move this right along. We have lost a couple of members at this point — other meetings that are going on across the street at the UBCM convention — and I know Bill Belsey is going to have to leave in about ten minutes. I'm sure you'll understand, Phil, and I appreciate you being here today on behalf of the B.C. Fisheries Survival Coalition. I know that you've had long involvement in some of these issues, and we certainly appreciate your input today. The floor is yours.

P. Eidsvik: It's been about 15 years since we've been involved in these particular issues; it's been a tough 15 years. You have no idea of the pleasure it is for a group of fishermen…. I think this is the first time there's actually been a chance that some elected officials will listen to what the fishing industry has to say. We certainly appreciate it and thank you guys for this opportunity. It doesn't mean you have to agree with us; it just means it's nice to have a forum where our opinions are taken seriously. I really believe this is the first time in 15 years of dealing with this issue that that's been the case.

I handed this out, and I think most people have a copy. Gordon apologized for not having his notes in a polished literary form. We did quite a bit of work on this, but I'll guarantee you it's not in the polished literary form that Gordon and Mr. Tennant would expect of their productions. I think we've taken a little bit of a different tack. We've tried to say: "How does all this pan out in the fishing industry, in our relationship with aboriginal people on the water?" In that we bring somewhat of a unique perspective.

We are the largest organization of commercial fishermen in B.C. — about 8,000 members. We were formed in '92 as a result of a federal initiative to create a separate commercial fishery for select aboriginal groups that now the province and the feds — and, I hope, not this province — are considering incorporating into treaties. In fact, a similar model was incorporated into the Nisga'a treaty — a thing that we drastically oppose. Although we don't support a political party, we certainly work with friends. We try to cause as much grief as we can for those who believe that commercial rights in British Columbia should be given out on the basis of race. I'll get to the question of race in a moment.

One of our big things over the last 15 years has been in court. We've probably had a bigger influence in aboriginal rights litigation than any other group in this province, probably in Canada. Virtually all the major aboriginal rights cases went through the Supreme Court of Canada with our participation or the participation of our predecessor, right from Sparrow to Van der Peet to Gladstone to Delgamuukw. We've been like a ship in a storm. I mean, we're essentially a group of somewhat ragtag fishermen who own small businesses catching and selling fish. But here we are, caught in this giant constitutional battle that will decide the kind and shape of province we'll live in 200 years from now. This was not a role that we wanted, and we accepted it with reluctance and out of necessity because we saw our access to the resource being restricted possibly through court decisions and, more recently, through federal and provincial government initiatives such as the treaty process.

I want to talk for just a minute about litigation, because everybody seems so afraid of litigation. In the fishing industry we have certainty and finality on aboriginal questions. In 1996 the Supreme Court of Canada made five judgments, and it set up a test to determine how a court is supposed to evaluate an aboriginal activity and whether that activity is so integral to their cultural life in the community that it's worthy of constitutional protection. We're comfortable with where the Supreme Court of Canada went on that. It's amazing now that the biggest source of instability and uncertainty in our fishery is not a future court decision; it's federal and provincial policies such as this treaty process that we're so reluctantly engaged in.

If you go back and think…. You know, we talk about time and expense. All the fishing issues were settled by the Supreme Court of Canada by 1996. The events that gave rise to those prosecutions that found their way to the Supreme Court of Canada took a little under ten years at a cost that we calculate was less than $10 million. At the same time they did that, they developed a test that you can apply to any aboriginal right in the country. So we settled the big outstanding issues on aboriginal rights in ten years for less than $10 million. We've got a treaty process that's gone on for 20 or 25 years at over $500 million, and we're miles away from settlement. So we shouldn't just ignore that the courts have a place in this debate because of, to me, uninformed rhetoric. Certainly, in our industry they've largely settled the issues. If the federal government does a good job defending the public right to fish, then we're not really too concerned about the outcome of further litigation.

That said, it has been expensive for our industry. Our association has spent about $3 million in legal fees since we began. Every dime of that has come out of the pockets of individual fishermen — not a dime of government support. It's been a brutal role for us to fulfil, because essentially we have defended public rights. We defended the public rights for hunters, fishermen, for all these areas that really, in a lot of places, don't concern us and we wish we weren't involved in. But we are there, and we've tried to do a fair and reasonable job of it.

Now we're in the middle of a treaty process. We don't have a lot of faith in the current process, mainly because the mandates come from nowhere. They just seem to evolve, and what can be put on one table might have no relation to what's put on another table. It seems to be a state of chaos. I think that would describe it fairly. We have problems with a lot of the officials, because they don't seem to act in good faith with us. Advice that we give seems to be ignored consistently year after year after year. They tell us one thing on one occasion and do exactly the opposite on the next occasion.

It's why we're so interested in this referendum process: to give our negotiators and the people on the other sides of the table a pretty good idea where the treaty process is going to head. That's the first step to certainty, finality and investment stability in our province.

As an example of how the process is today…. I read Vaughn Palmer the other day, and he was talking about the problems in the B.C. treaty process as described by Mr. Steenkamp, who is a provincial representative. Mr. Steenkamp suggested that they were making great progress on fisheries issues, and this could be an interim measure. The only progress being made on fishery issues is at the total opposition of the commercial and recreational fisheries. Every commercial organization without exception, every recreational organization without exception, has opposed this idea of a separate commercial fishery for select aboriginal groups. We believe there's lots of room in the commercial fishery for everyone, and let's do it that way. But it's disturbing to have a provincial representative endorse the Nisga'a precedent, endorse the offer that's been put on the table to the Tsawwassen band, which in our view is guaranteed destruction of the commercial fishery in British Columbia — guaranteed, unequivocal.

We don't come without alternatives. We've always said that aboriginal people can join in the commercial fishery on the same basis as the rest of us. For example, if they want to get on a seine boat, we've always said that the government should supply funding and a licence so the aboriginal people can have a seine boat. Now, a lot of those programs have been operating since 1968, and today aboriginal people make 30 percent of the commercial fishery in British Columbia. It's the single largest employer of aboriginal people, outside of government, in any industry in Canada. The largest holder of seine boats in British Columbia is an aboriginal chief from Port Hardy. He's the largest private holder. And what he's faced with now is his huge investment in the public fishery but being told that he made the wrong decision, because the government now wants to take the fish out of the public domain and move it over to select aboriginal bands for these agreements. He's wondering: "Okay, I've put in $10 million. I've provided employment in my community for hundreds of people, but the government thinks I've made the wrong decision." It's been a real source of grief for our aboriginal friends in the fishing communities up and down the coast. That's why we say that treaty mandates are important.

I'm not going to go on; I'm probably not going to use my half-hour, because I've given you something to read. I do want to get through some of the proposed referendum questions, but first I want to talk about the issue of race. The Supreme Court of Canada said that an aboriginal activity that was integral to the community…. For example, the Musqueam — their pre-European contact community was based on the harvest of salmon. If you took away salmon from the Musqueam, they would have had to have a different community. Perhaps they would have been farming or something else. But their proximity to the coast meant that they were fishermen, so they have a right to fish for food.

Now in the Nisga'a treaty and in other treaties — for example, the Nuu-chah-nulth treaty — the federal government offered a commercial fishery to the Nuu-chah-nulth — private commercial fishery that I can't fish in, private commercial fishery that my descendents, my daughters and their daughters and sons won't be able to fish in, simply because they don't belong to the Nuu-chah-nulth band.

Interestingly enough, the Nuu-chah-nulth litigated this issue of a commercial fishery all the way to the Supreme Court of Canada and lost. So where does this right come from? Where does this right that we're going to put in a treaty and constitutionalize forever come from? It doesn't come from their pre-contact activities. I mean, the Supreme Court of Canada heard that, ruled on it. It's settled. Where else does that right come from then, but totally and entirely determined on the race of the Nuu-chah-nulth acquired through a treaty negotiation?

We have some real grief with saying it's not. I think if you look at the Nisga'a treaty and look at the eligibility criteria to be a recipient of the benefits from the Nisga'a treaty, it says that an individual is entitled to be enrolled if that individual is of Nisga'a ancestry. That restricts entitlements to the Nisga'a treaty on the basis of race. Now, maybe it's a strong word to use. Certainly, when I go on the water…. I go fishing in northern B.C., and I come from a Norwegian background. A lot of my native friends may be Kwakiutl. They may come from the Nuu-chah-nulth. They may be Musqueam. They can't fish, but they're looking over there. And right over there — a hundred feet away, across the line — Nisga'a commercial fishermen are fishing because they have the Nisga'a ancestry to par-

ticipate in that fishery. That's race-based, and I don't know how else you can define it.

I'm going to move on to the proposed referendum questions. We've tried to come up with questions that would give me as a fisherman — or John Doe as a lumberjack working out of Smithers or Bill Wimpney from Chilliwack driving into Fort St. John to shoot a moose — some ability to determine exactly how treaties are going to be negotiated. We know it's going to be a long process. We think that the fundamental, overriding objective should be equality.

Mr. Gibson talked a bit about the idea of setting aside constitutional rights. We talked about that quite a lot among ourselves. We thought there's a lot of problems with that, because as was discussed, aboriginal rights…. We don't know what they are yet. We're pretty sure where they are in fishing, but there's lots of other areas where we're simply not convinced, and we don't have any definitions. When an aboriginal band goes to a treaty table and says, "We have a right to fish prawns commercially. It's an aboriginal right. We've done it since forever. It's our right," what does the treaty negotiator do? Does he say: "You gotta prove it"? Then we've got to go back to court. Does he just incorporate it in the treaty, thus creating a right that may not even exist? I don't think you can simply have a set-aside on the question of aboriginal rights. You have to find a way to draft that question.

If you look at question 2, so far we haven't been able to capture this particular problem in a question. I expect that you guys have lots of talent among you. You have lawyers and battalions of pollsters. Maybe you can do a better job than we can.

P. Eidsvik: Our basic feeling about the issue is that government shouldn't create new aboriginal rights through a treaty, which then become treaty rights. Our fundamental position is that aboriginal people deserve to be full Canadians with equal responsibilities and benefits as everyone else. Only then can we get to a peaceful society.

If you look at the commercial fishing industry, which is the one industry where aboriginal people have had a fair shake, they're successful. They're more competitive than the average other Canadian. At the end of the year they tend to earn a little more money than the other Canadians in the fishery. They don't do it because the fishery is closed to everybody else, so that they can have a private fishery. They do it by setting their net a hundred feet away from mine, because they know there are more fish over there. I think this idea that we need to protect aboriginal people and shelter them from competition in the real world is imaginary and false. We certainly have more faith in our aboriginal friends than that.

Ethnically based government is a problem for us, because if you look at the Nisga'a treaty as an example, they've set up separate fishery management regimes. There's some Nisga'a players on it, some federal players on it and maybe one or two provincial players. What we have is a whole bunch of different fishery management regimes around the province, and that is a recipe for chaos. It's a fundamental principle in fisheries management that the best-managed fishery, which does all the conserving, simply transfers the economic benefit of that conservation over to the worst-managed fishery. We're not saying that the Nisga'a are going to be the worst-managed fishery. We're not saying that the Nuu-chah-nulth, when they start their fishery, are going to be the worst-managed. What we're saying is that everybody should have the same benefits from conservation and the burden of conservation that we all suffer.

It's not a hard thing to do. It's simple: one set of rules and regulations for everybody. That's where we come back to this thing again and again. If you could only ask one question, you could ask our question 1. In every clause you put in the treaty, you could ask: are aboriginal Canadians getting a benefit here that other Canadians don't have? I think if you look at it from that perspective….

Then we come to the exchange issue: whether it's fair to ask aboriginal Canadians to put their rights on the table in a treaty negotiation. We are spending billions of dollars; there are immense quantities of land. We're willing, as a fishing industry, to put the idea of special commercial fisheries for aboriginal people on the table. We're bringing something to the table, and we're confident that this issue has already been litigated. We don't have to worry about this in law anymore.

It's interesting. In New Zealand, where they have already settled treaties on fisheries, the principle has been: "We will buy you quota, and you'll fish it under the same rules as all other New Zealand residents." Now, there may be an aboriginal community that owns the quota and owns the licence, so that the benefits flow back to the community — which is great — but when they go out fishing, they do so under the same rules and regulations. I think, for anybody in the public — whether it's trucking, whether it's gambling, whether it's cutting down trees, whether it's computers or broadcasting — we all want to work in a workplace that has the same rules and regulations as anybody else.

Resources or money, to us, is an interesting issue. I think it partly comes back to this Terms of Union clause giving jurisdiction to the federal government for aboriginal people. If it's resources, they've got to come from somewhere. If it's land, it's got to be taken from a logger or a miner; if it's fish, it's got to be taken from the public fishery. So how do you equally share the burden among all the people in Canada who owe a debt to aboriginal people? The only way you do that is with cash. We're not saying cash is the total thing, but we're saying cash is a preferred means of settlement, rather than resources.

I think the question of who gets the benefits is important too. Our fishery is 30 percent aboriginal. I mean, we're fishing every day with guys, and they're telling us exactly the same thing: "Phil, you know the

problems you've got in your community? They're exactly the same in ours. The chiefs are getting rich; I've got nothing. If I want to get a licence to fish, I've got to be nice to the chief. If I'm dating his daughter and I dump her, I might not get my licence next year." I think aboriginal fishermen want to go to DFO and be guaranteed the licence on the same terms that I get it and any other Canadian gets it. Why should they be caught into a collective communal society without a choice?

If you go back 150 years, aboriginal people have never been asked: "Do you want to be a full Canadian with all the rights and responsibilities? Would you like a bunch of land and some money that you can own privately yourself and make the best of your life in Canada, as any other Canadian?" Why should we say that they can't have that choice? To me, that's fundamentally wrong. I don't think you're dictating to them when you say: "Here's an option." I think you're simply saying: "Yes, if that's the choice you want, you should have the right to exercise that option."

The terms of union — our question 9 on page 9 — I think are important, because it does come back to this issue of who pays. I mean, in British Columbia now we're looking at deficits year after year.

Should British Columbia assume a debt that was paid off in 1924? It's again a question of fairness. Section 35 was put in the constitution by the federal government. Canada is a federal democracy; it's not a provincial one. Our debt to aboriginal people is a debt owed by all Canadians, not just by the residents of British Columbia. This is a federal debt. It's constitutional, and I can tell you that Quebec, New Brunswick and Ontario would fully insist that the federal government maintain and fulfil its constitutional obligations. I don't think B.C. should do any less.

Finally, our question 10 is the time limit on negotiations. Some say this may be unconstitutional, but there's a big question of how long British Columbia's access to resources and the uncertainty created by treaty negotiations can continue to exist. Maybe at the end of three or five years we should say: "Okay, we haven't made any success here. We're going to set up a special tribunal. Every aboriginal person will get X. Those people who don't want it can litigate, but we will pass legislation in the meantime which secures title and government's ability to manage and develop the lands and resources of British Columbia."

The Supreme Court of Canada has said time and again that infringements are justified. This may be a justified infringement. Certainly in Australia they passed legislation, but they don't have the constitutional protection there. These ideas come from senior people in the legal community who have decades of experience on the aboriginal issue and litigating these issues in court. I don't think we should say just out of hand that we can't look at these issues. I encourage the committee to do that.

I guess our conclusion is that with the heat over this referendum process, it's an easy temptation to have questions that mean nothing. I saw one the other day that said, roughly: "Should aboriginal treaties be settled with finality and certainty for all?" That's a nice question. The words sound good, but it's meaningless in content. The federal government says that this big agreement here creates finality and certainty. I can tell you that in the fishing industry, we don't even understand the fishing clauses in here. There's enough litigation in here to keep our lawyers going for a hundred years.

What we want to do instead is set up a practical framework. The closer you get to equality, the less litigation and the less controversy you're going to have. To take the easy way out and not have serious questions, to me…. We were promised meaningful input in the election campaign. Meaningful input means meaningful questions. The people of B.C. own B.C. It's not the government; it's not the media. We're all going to be long-gone when these treaties are still in action and, hopefully, working properly as a result of the work you guys can do.

I want to finish off with a little story about fishing in Prince Rupert in 1929, of all places. The Japanese, throughout the early history of the fishery, were very good fishermen. One of the ways the federal government tried to control it was that in 1928 they passed a law. On the Skeena there were no gas boats allowed north of Cape Caution. For you guys who are unfamiliar, that's the northern tip of Vancouver Island. So all below you'd have gas boats, but above you couldn't.

The fear among what were described then as the whites and the Indians was that the Japanese were too good as fishermen. So in 1928 they passed a regulation to allow whites and Indians — and I'm using the language from then; those are not my words — to have gas engines. The Japanese thought: "We've got to row. These guys have got gas engines. What I'll do is hire a young little muscleman. He'll row my boat. I'm the old guy; I know where to fish." So at the end of a year's fishing, the Japanese are still catching more fish than the whites and the Indians.

So along comes more political pressure, and the federal government passes a second regulation. This time they banned any more than one person in the boat. So the natives and the white guys are speeding up the river with their gas boats, yelling…. One of the quotes out of this story is: "Row, Jap, row." You can see how offensive that is. Of course, the old Japanese guy now, because he doesn't have a young guy in his boat, is rowing away. And of course they're not very effective.

One of the young Japanese guys who was up there that year said: "You know, this is wrong." He had just graduated from law school. He went back down to Steveston where there was a big Japanese community and said: "Look, we've got to fix this on the Skeena." So he borrowed a bunch of money from these guys, went up north and bought a gasoline-powered boat. The next time it opened the following year, he said, "I'm going to go fishing," and went fishing. They had a big

protest fishery. I'm quite familiar with that, and so are some other people. He got arrested and thrown in the slammer. So the next day he was in Provincial Court in Prince Rupert explaining to the judge what happened. The judge threw the regulation out.

That was the end of discrimination in the B.C. fishery. Why should we head back to something we fixed 80 years ago and put it in treaties today? I think that's the whole thing of equality. Since 1929 we've generally had a colour-blind commercial fishery, something we could all be proud of. If James…. His seiner was sinking in the Gulf of Georgia. Did we ask if he was native before we went over and bailed him out? Of course not. It was one built on brotherhood. I think that's where we need to head the treaty process. Hopefully, these questions can get us there.

D. MacKay: I'll just start with a comment, Phil. First of all, thanks for coming out today. It's nice to see you sitting in a chair dressed in a suit as opposed to sitting behind the bars of a jail. I want you to know that I admire you and the stand that your organization takes when it comes to the opposition to the aboriginal fisheries strategy. I've seen you in action, I know what you do, and I admire your stand on this race-based fishery, which seems to have worked its way into the fishing industry based on treaties that have been passed down to us from past years.

One of the things that I just wanted to comment on, and several people have commented on, is the need for equality and opportunity for the natives in the province. Nowhere has it come across more noticeably than in your comments to us this afternoon. You mentioned that 30 percent of the commercial fishing fleet…. Is it 30 percent of the fishing fleet that's now native-owned?

P. Eidsvik: That's correct; 30 percent of the fleet is either owned or operated by aboriginal people. In Prince Rupert the gill-net fleet is 60 percent aboriginal, yet fish were taken out of that fleet and transferred to make the Nisga'a treaty. The shore workers in the plants in Rupert are more than half aboriginal. These aren't McJobs; these are good-paying, real jobs that supported families.

D. MacKay: Still, the governments of the day seem to want to impose this AFS that is not necessary, from what you've just told us. Given equal opportunity and equality, the natives can compete head to head with other fishermen. I don't understand the aboriginal fishing strategy at all.

We talk about equality, and we had a presentation the other day. I'm just going to mention this, and then I'll shut up. A fellow from the Chilliwack area — his name is Eppa — spoke about his dreams and aspirations for his children, and he spoke about the inequality and the lack of human element and the lack of employment opportunities. When he finished, he really sounded like he was talking about not just natives but people generally. There are a lot of people who have inadequate employment opportunities and other opportunities that aren't unique to natives. They're common throughout the province. I couldn't help but comment on that after he was finished.

Phil, once again, I'm glad you came and told us your view on where we're going and how we should get there. I just want to thank you again very much.

V. Anderson: One or maybe two questions come out of that. Once you get established in the fishery…. In getting established, I want to check it out, because this is what I've heard. One of the difficulties that some aboriginal people have in getting established is that they can't go to the bank and get a loan because they live on a reserve. Therefore, if you live on a reserve, banks won't…. You have no collateral. If you live in a house, all of those things, banks don't…. Their concern is that they have a disadvantage on that point. Have you come across this at all with the aboriginal fisheries? Have some of them gotten into there because they have government loans that enable them to get into the fishery in the first place, and after that they're…?

P. Eidsvik: It's an interesting issue. We just finished a long, very expensive court case on this issue, where this was a big issue. Since 1968 there have been a whole bunch of programs. The biggest source of financing in the fishing industry has been typically companies like B.C. Packers and Canadian Fishing, where I've gone to them as a good fisherman and said: "I'm a good fisherman. Loan me some money." That's how a lot of them get it.

I think the best example we had in the court case was a young Vietnamese woman who came home one day when she lived in Vietnam at the end of the war. Her dad said: "You're leaving tonight. Pack a packsack. You're going with your cousin." Her uncle had bought her way on a ship with ten ounces of gold. She sailed around the South China Sea for three weeks; banged up on Hainan Island, where that U.S. spy plane was being held. The ship sunk. Of course the Chinese didn't want them there, so they pumped out the ship, towed it into Hong Kong harbour. She spent a better part of three or six months in a refugee camp, then got into Calgary. Of course, she says: "I'm 15; I've come to Canada. I should go to school, but I have no money. I have to work." So she worked in a GWG jeans factory in Calgary during the week. At night she washed dishes in a restaurant, and on weekends she was a chambermaid. At the end of three years in Calgary, working on those minimum wages, she'd saved $30,000.

So she comes out to B.C. because the factory moves to Ontario, and one of her cousins says: "Look, I know this guy who fishes. Maybe we should get a fishing boat together." So they borrow money with another friend. They all throw a little bit of money in the pot and get a fishing boat. And she says: "You know, my cousin, he say he know how to fish, but he lie. We go

out and fish, lose net, break pole, have to buy a new one. Go back to dock, lose net, break pole, have to buy a new one. Money going like this." Now, she's about this high, and she's on the stand during this whole conversation. Tears are running down her face, and she says: "Finally salmon comes along, so I watch another guy put their net on the drum, 'cause we don't know how to do it, and then we head down the river." And they're at Steveston. She says: "But then I realize we don't know where to go. So I look for a good boat. I follow him." They end up out in Barkley Sound near Port Alberni. She's never been out on a boat before. So she says: "Set net. Very strong tie. Lose net. Net gone. Go back to Vancouver."

But slowly, after a while, she gets accustomed to fishing. They buy a second and a third boat. And the Crown counsel who charged us for fishing in this fishery — his argument was exactly the point that you raised — says: "Well, how did you get the money to buy the second boat? Did you have a house? Did you have a mortgage? Did you use that as collateral?" She goes: "I don't understand collateral. What is that?" And he goes: "Well, why did the bank give you the loan?" And she goes: "Credit card. Have credit card." And he says: "Well, how much money did you borrow?" And she goes: "$40,000 and $35,000." And he goes: "Well, what did you use for collateral?" She says: "Well, I have credit card. I pay every month. Make money off fishing. Show them. Every year make money off fishing."

Now the Crown guy's getting a little bit worried, because his whole argument is about natives not being able to participate because they can't get a bank loan, of course. He says: "Well, you must have had a house, because otherwise why would the bank loan you the money?" And she goes: "Very good bank customer." And he goes: "No, the house." She goes: "House? I live basement suite."

So there was opportunity in the fishery. George Horne, another native who testified on our behalf in this case, a status native from the Cowichan band, got into fishing in 1946. He says: "Everything I have in my life came from fishing. I started out in a rowboat in Rivers Inlet. B.C. Packers let me take an old boat off the beach and get going, and they've helped me ever since." So, with respect, I don't think that argument holds water, but it's a good point for discussion.

M. Hunter: I can't let my friend Mr. Eidsvik go without a couple of questions.

M. Hunter: No, but…. I want to be sure that when people read the public record, they understand the point you are trying to make, and I'm not sure that you've made it. What you've said to us is that in commercial fishing, the scope, extent and existence of aboriginal rights have been clearly proven in a number of court cases. I am, of course, familiar with those cases. I've read them, and some of the findings and the dicta around them are, at least, interesting.

Given that you have certainty in the business of fishing with respect to the extent and scope of aboriginal rights, why exactly are you nervous about a treaty process? If governments were doing their job, would they not be applying the law? Why would we be concerned?

P. Eidsvik: We have spent many sleepless nights trying to understand why the governments in this case have totally abandoned and ignored the law. For instance, the Nuu-chah-nulth treaty. Why have they put a private commercial fishery on the table in the Nuu-chah-nulth negotiations when those guys litigated it all the way to the Supreme Court of Canada and lost? Why have they put a commercial salmon fishery on the Tsawwassen table just recently, a few weeks ago, when the Stó:lo, the next tribal group upriver, litigated all the way to the Supreme Court of Canada and lost?

It is to our ever-enduring frustration that every time we win a case such as those, the government says: "Well, we can't pay any attention." Yet when a case like Delgamuukw comes out and the interpretations are all over the place, the government says: "We're doing this because of Delgamuukw." We've always asked: "Well, if you're doing that because of Delgamuukw, why don't you do this because of NTC Smokehouse or Regina v. Van der Peet?" Am I making that clear?

M. Hunter: Yes. So these proposals that are on the table in Nuu-chah-nulth, for example, are coming from the federal government. Has the British Columbia government supported those principles at this point?

P. Eidsvik: We're not really sure where this provincial government — the B.C. Liberal provincial government — is heading on this issue. Certainly we have attached to this the Premier's commitments not to do this kind of thing, but we haven't had any word about what they're doing. We've tried to encourage the Premier to come out and reaffirm the statements he made a couple of years ago, but so far we just don't know, and Mr. Steenkamp's comments on the B.C. Treaty Commission are a source of great concern.

J. Les (Chair): Maybe just as a wrap-up, Phil, the first proposed question that you submit, dealing with equal rights and responsibilities for all B.C. and, I assume, Canadian residents, and your reluctance to incorporate language that was suggested earlier this afternoon, "except as varied by the Canadian constitution…." Can you explain to me again what your concern is with respect to the other language that said: "Okay, all things being equal except those perhaps unquantified aboriginal rights…."? I think you alluded earlier to the fact that they may well be unquantified at this point and perhaps won't be until far into the future.

The way I see it is that that is a risk on both sides of the equation. That is a risk to non-aboriginal British

Columbians, but that is a risk to aboriginals as well. I think there is a level of fairness there that is perhaps not too great a risk for all of us to encounter.

P. Eidsvik: It's a complex issue, and you can tell that we've been struggling with it. Our concerns are that if you leave that door wide open, as you do with a simple set-aside, what claimed rights…? I can tell you that the variety of claimed aboriginal rights is extensive; they cover every fishery species. They even cover black cod, which is caught 200 miles offshore. So the question is: how do you put some parameters on what should go into a treaty?

I'm saying that also because I think the treaty outcome should come as close to equality…. Maybe it's a time limit on certain rights; maybe you say that after 50 years, this right is no longer there. But equality, I think, is a really strongly supported principle. So what do you do with, say, an aboriginal right to fish salmon for food in the Fraser River? Should that right be in place 500 years from now? When you incorporate that right into a treaty? Do you just incorporate it holus-bolus, with all the enforcement problems and the abuses of that right that we've seen carrying on today? Or do you say: "Setting aside aboriginal rights that may be integrated into a treaty in an enforceable and fair and balanced manner"?

You know, the Supreme Court of Canada has put this issue on the table. They've said that aboriginal rights don't exist in a vacuum, that they exist in the context of a broader Canadian society and that they should be balanced with the rights of other Canadians. It's like any other right. Why should we assume that we can't talk about those things in a treaty — that they're just inviolable, that they have to be in there? You know, we've got to look at it that treaties do last 500 years. We need to think: should we simply incorporate them because they're there, or should we do what the Supreme Court of Canada said? Let's try and balance our futures together so we end up reconciling them with societies that can work together 200 years from now. I just don't want to see a future where our guys are tied to the dock watching somebody else fish and people are still angry at each other and they're fighting over it. I mean, we need to settle this in our generation; it's not a burden we ought to put onto our kids.

J. Les (Chair): I would tend to agree with you that this ought to be a process of reconciliation and not creating new problems. This whole question of what are aboriginal rights — I'm not sure there's anyone in this country that completely understands what those are. The Supreme Court has said it doesn't know; go out and negotiate. You know, of the various people we listen to in this process, nobody really has a handle on it. My fear is that perhaps the process of determining what those rights are will be so long and dragged out that the actual treaty-making process itself is going to be so much further out into the future. I think that is the reality. We can do it one way or the other way. I'm not sure that trying to figure out first what those rights are and then, as an earlier speaker said, deciding to get married forever with no way out…. Is that a better process? That's a rhetorical question on my part.

The other thing I would point out that's a complicating factor is that we are dealing here with a resource over which the federal government has claimed exclusive jurisdiction, in many cases. I'm sure you're well aware of all of the intricacies of that.

P. Eidsvik: Yeah, and the province actually has a lot more jurisdiction than we think it does. Although I sometimes don't blame the province for not wanting to have 2,000 angry fishermen parked on the steps of the Legislature, and that may be why the province has hesitated to exercise its jurisdiction.

M. Hunter: Mr. Chairman, I take your rhetorical point. But the point that Mr. Eidsvik is making is a valid one, I think, in that having gone to court…. I mean, there's no question that the Stó:lo right to fish has gone through in Regina v. Van der Peet. It's clear; that's the final word. The concern is that a government comes along with a treaty mandate and says, "Never mind what the law says. We have some other issues to deal with here," and governments, in the famous words of Dave Zirnhelt, can do what they want to do. They do it, and never mind how much money Mr. Eidsvik and his colleagues are spending. That, to me, is a concern.

I would also make the observation — and I think it's important in dealing not only with the fisheries issues here — that it's clear from my experience with fisheries…. I think, with what Mr. Eidsvik said, that the costs of doing what has been done over the last ten years or so, certainly since 1992 and the aboriginal fishing strategy — which our party happens to oppose, I'm grateful to say…. All of those costs have been borne by British Columbians. Every last cent has been borne by people who live and work here. So while it might be a federal jurisdiction, I don't think the last word has been said on that issue.

J. Les (Chair): Okay. Thank you again, Phil, for coming this afternoon and helping us out with this process. Thank you for leaving behind an extensive brief. I appreciate that.

With no further business to conduct today, I will adjourn the meeting until next week: Wednesday in Prince Rupert.

REPORT OF PROCEEDINGS (Hansard)

SELECT STANDING COMMITTEE ON ABORIGINAL AFFAIRS

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE
ON ABORIGINAL AFFAIRS