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

The following electronic version is for informational purposes only.
The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE 
ON ABORIGINAL AFFAIRS

THURSDAY, OCTOBER 18, 2001

Issue No. 12

ISSN 1499-4151

[ Page 333 ]

THURSDAY, OCTOBER 18, 2001

           The committee met at 10:03 a.m.

               [J. Les in the chair.]

           J. Les (Chair): Good morning, everyone. I'd like to welcome you to today's hearings of the Select Standing Committee on Aboriginal Affairs. My name is John Les. I'm MLA for the riding of Chilliwack-Sumas, and I chair this committee. Before I ask the other members of the committee to introduce themselves, I'll just make a few remarks about what we've been asked to do by the Legislative Assembly.

           We were legally constituted on August 27 and asked by the Legislature to examine, inquire into and make recommendations with respect to all matters and issues concerning questions that the government of British Columbia should submit to voters to implement the government's commitment to give all British Columbians a say on the principles that should guide B.C.'s approach to the treaty negotiations through a one-time provincewide referendum, while ensuring that constitutionally protected aboriginal rights and title are respected. Terms of reference and other information about the legislative committee are available at the information table at the back of the room.

           We're eager to hear the views from a range of British Columbians, and in this process we hope to build interest and support for the treaty-making process. We've published our hearing process and a call for written submissions in radio and newspaper ads throughout the province. We will be accepting written submissions until November 2. We've had hearings in a number of locations before today, and we have a number of meetings yet to conduct in various parts of the province. That itinerary, as well as the transcription by Hansard staff, is available on the website at www.leg.bc.ca/cmt.

[1005]

           Following the public hearings the committee will prepare a report of its observations and recommendations. This report will be tabled in the Legislative Assembly or, in the event that the Legislature is not sitting by November 30, filed with the Clerk's office. The report will at that point be a public document, of course.

           Introductions, starting at my far right.

           R. Visser: Good morning. My name is Rod Visser, and I'm the MLA for North Island. My home is in Campbell River.

           D. Chutter: Good morning. My name is Dave Chutter. I'm the MLA for Yale-Lillooet. I live just outside of Merritt.

           B. Belsey: Good morning. My name is Bill Belsey. I'm the MLA for North Coast, and I live in Prince Rupert.

           D. MacKay: Good morning. My name is Dennis MacKay. I'm the MLA for Bulkley Valley–Stikine, and I live in Smithers.

           P. Nettleton (Deputy Chair): Good morning. My name is Paul Nettleton. I'm the MLA for Prince George–Omineca, and I live in Fort St. James.

           V. Anderson: Good morning. My name is Val Anderson, MLA for Vancouver-Langara, southern Vancouver.

           G. Trumper: Good morning. I'm Gillian Trumper. I'm the MLA for Alberni-Qualicum. I live in Port Alberni.

           B. Lekstrom: Good morning. My name is Blair Lekstrom. I'm the MLA for Peace River South. Dawson Creek is my home.

           M. Hunter: Good morning. I'm Mike Hunter. I'm the MLA for Nanaimo.

           J. Les (Chair): To my immediate left is Kate Ryan-Lloyd. She is the Clerk to the committee. At the back of the room is Tamara Little, who's a consultant to the committee.

           We have a very full agenda today, a very full speakers list. As a matter of accommodating everyone, generally speaking, speakers will be limited to 15 minutes of presentation time. If I'm able to be more generous than that, I will be, but that is the general rule of thumb that we will have to work with today.

           Having said all of that, our first presenter this morning, who has been patiently waiting, is Mr. Keith Lowes.

Presentations

           K. Lowes: Good morning. I'm a lawyer. I've been practising in the area of aboriginal rights for about the last 15 years. I've provided the committee with a written presentation. At the back of that presentation is a biographical note, so I won't go into that in any detail.

           Given the time limit, I will also follow fairly closely my written presentation. If you have it before you, I think it would be helpful if you followed along with me.

           The focus of my presentation is, perhaps, a little different. It's on the process of this committee. I hope that by giving you that focus, I'm not presumptuous. I think it may be that given my experience with the issue, I may be able to provide some assistance to the committee in its focus.

           As I say in my introduction, the purpose of my submission is really threefold. The first is to suggest an appropriate analytical process for the committee in receiving the information it gets in its hearings, ruminating over that information and coming up with its suggestions. The second is to provide some context for the referendum questions — in particular, the context of aboriginal rights and the constitution. Third, I

[ Page 334 ]

provide at the end a suggested core question for government, which is an example or an application of the analytical process that I suggest. I provide it as a working question you might find useful.

           My submission really can be summarized into three basic propositions, which I have under the introduction. That is: start with the core question for government. Secondly, keep aboriginal rights in perspective. Thirdly, ask the hard question.

[1010]

           First of all, dealing with the analytical process, this isn't as complicated as it sounds. I'm simply suggesting that when you have received your submissions, you sit back and try to articulate what the core question is here for government. Work that question out, and then rearticulate that question in questions that are appropriate for the public in a referendum format. As I say, at the end of my paper I suggest a core question which might fulfil that function.

           What I'm suggesting is that the analytical process is simply an application of an experience that we all have when we're involved in a discussion. Often we are involved in a discussion where we have input from various points of view and various arguments. At the end of the day, somebody says: "Doesn't this all boil down to the same question, and that is X?" Often that question provides the insight for a handle on just what the issue is.

           I emphasize the point that the core question I'm suggesting is not the core question for the public. It's the core question for government, which needs to be informed by questions for the public.

           Turning secondly, then, to context, I say there are two important contexts in which the referendum questions must be developed. The first is what I call the constitutional context, and the second is the social context. I have emphasized context in my paper. I have emphasized in particular the constitutional context because of two positions that I've heard taken in the press and in the debate, which I suggest are not only red herrings but would tend to diminish the focus or the value of the committee's work.

           Those two positions are this: that the referendum in itself (a) ought not to be held, or (b) ought to be qualified, because what is involved here is trampling on, diminishing or criticizing minority rights and their treatment in the constitution. I say that is a wrong position, and that is why I have dealt with some of the context.

           The second position that prompted me to say as much as I did about the constitution and aboriginal rights is that aboriginal rights are unknown, and therefore it's not the business of either this committee or the public generally to think about them, to comment on them and to deal with them. Both of those illegitimate positions can be met by simply understanding what aboriginal rights are about, not by avoiding them or setting them aside.

           Having said that, I'll deal very, very quickly with the context, and here's where I'll follow my paper very closely. If you'll look at the first page under aboriginal rights, I say that the committee's terms of reference require it to — and I've taken a quote from your terms of reference — "[ensure] that constitutionally protected aboriginal rights are respected."

           That's not a particularly difficult task. It can be accomplished by understanding three things: first, the limited scope of aboriginal rights and their limited constitutional protection; second, the difference between aboriginal rights and rights under a land claims agreement, and the relationship between aboriginal rights and land claims agreements; and third, often lost in the shuffle, the different functions of the executive and the Legislature on the one hand and the judiciary on the other — in particular, understanding that the protection of aboriginal rights is primarily, if not completely, the function of the judiciary.

[1015]

           Now, over the page, when I talk about the constitutional context, my general point is really made in the first paragraph. I say it must be remembered at the outset that aboriginal Canadians are Canadian. Section 35 of the constitution, which protects aboriginal rights, is part, but it's only part, of the constitution of Canada, and it's to be read together and consistently with the balance of that constitution.

           Put another way, and in a way that's not so legalistic, it must be remembered that aboriginal Canadians are part and parcel of Canadian society as a whole and that the entire society is governed by the same sovereign power. On the balance of the page I simply set out some quotations at length from some of the leading cases, particularly in the Supreme Court of Canada, that make that very point.

           I'm concerned about that, because as I see it, the treaty model as it's presently being followed is the exact antithesis of the model set out by the courts, that being that aboriginal Canadians are Canadians, that they're part of one society and that the society is governed by one sovereign. The treaty model, as I see it, is that of separate territories with separate jurisdiction. As I say, it's the exact antithesis of the model sketched out by the courts.

           This is encapsulated in a wonderful quote. I've put the quotation on the cover page of my submission, and I've also put it in the body. It's a quotation from Mr. Justice Lambert of the B.C. Court of Appeal in Delgamuukw. It's of particular force, because some of you will remember that Mr. Justice Lambert was probably the judge on the Court of Appeal who was most favourable to aboriginal rights.

           He said: "But political sovereignty and its associated rights within British Columbia are in the hands of the entire British Columbian and Canadian communities alike. So in the end, the legal rights of Indian people will have to be accommodated within our society by political compromise and accommodations based, in the first instance, on negotiation and agreement and, ultimately, in accordance with the sovereign will of the community as a whole."

           In the interests of time, I won't go into detail, but that context is reflected in both the legal definition of aboriginal rights, which are defined essentially as protecting cultural values, and the degree of protection of

[ Page 335 ]

aboriginal rights, which in a nutshell, is not absolute. The constitution calls upon government to justify infringements of aboriginal rights that it deems necessary in the course of governing in the interests of the community as a whole. I commend those pages to you, essentially on that point.

           If you could turn quickly to page 5, I'd like to bring your attention to an important aspect of the relationship between aboriginal rights and land claims agreement. As I say in my first paragraph there, although the objective is the same — that is, reconciliation — they are two distinct processes. Aboriginal rights doctrine is a doctrine whereby the courts define special rights for aboriginal Canadians.

           Land claims agreements are agreements in which, to the extent to which there are to be special considerations for aboriginal British Columbians, they're negotiated by agreement. The implication, which is often lost in this distinction, is that aboriginal rights are negotiable. In fact, claims to aboriginal rights requiring special treatment are the very thing that the aboriginal party to negotiations brings to the table. Whether they bring that by way of asserting the claim as a threat or offering settlement of the claim as an inducement, it's obvious that the fundamental purpose of the land claims agreement is to replace the judicial determination of a claim to special treatment with a negotiated one.

[1020]

           I've set out a passage from the very first case that dealt with section 35 of the constitution, the Sparrow case, to show that that is the understanding certainly of the Supreme Court of Canada at the very outset. The full court said: "Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place." Obviously, the negotiations are about those aboriginal rights.

           As I say, in the interests of time, I won't go into detail. I would love to expand at length and give you a dissertation on aboriginal rights and their constitutional protection, but I know you're busy, and that's really not what you want to hear. I trust that you'll read the paper.

           The other important context, of course, is the social context. I simply make the obvious point that the "Indian land question" has been and is one of the most fundamental questions throughout British Columbia history, and it's one that raises passion on both sides of the equation. I simply say that in relation to my last proposition, which is: ask the hard question. What's called for in this referendum and what's called for by government is asking the difficult question and asking it honestly.

           The balance of my paper here is a working suggestion for what I call the core question. I must say that I have read the transcript of some of your submissions, and I think, from what I've read, that this core question subsumes most, if not all, of the suggested referendum questions. Again, I caution you that this is the core question, or a suggested core question, for government. It's up to you, with the help of experts, to rearticulate this core question at the appropriate level of generality and with the appropriate focus on various aspects so that it's appropriately informed by the public.

           In my view, the core question — and this is found on page 6 — is something like this: whether, or to what extent and under what conditions aboriginal British Columbians should be treated differently from other British Columbians, in particular, whether, or to what extent and under what conditions aboriginal British Columbians should receive separate and different benefits, entitlements or privileges from other British Columbians.

           I say a number of things about that question. I should note, first, that the central concept in that question is differentiation or separateness. It is not differentiation or separateness per se — we've got that in the constitution — but rather in the provision of special or additional benefits.

           I say that this is because the differentiation between aboriginal and other British Columbians and the provision to aboriginal British Columbians of additional entitlements is the essence of claims to aboriginal rights and thus the settlement of those claims by land claims agreements. I suggest it's also because differentiation and its constitutional recognition is a remarkable occurrence in a democratic country.

           You should note also, I think, that the terminology I've used in the question is that of aboriginal British Columbians rather than aboriginal peoples or first nations. I say that the use of those kinds of terms confuses rather than clarifies the issue — the issue, as I stated at the outset, being the context in which aboriginal rights and land claims settlements are to be negotiated. The use of those terminologies establishes an intellectual model which, while recognizing the unique constitutional relevance of aboriginality, ignores contemporary political and social reality. These agreements are being negotiated in the twenty-first century, not the eighteenth century.

           Now, in drafting this core question, I've followed what I see as the core legal question that underlies the jurisprudence, and I won't go into that. That is stated on page 7. I say that the core legal question also recognizes and focuses on the tension between differentiation and separateness, on the one hand, and a recognition that aboriginal people are members of the same polity as non-aboriginal people, on the other.

           Those are my submissions, and I'll be happy to take questions if there are any.

[1025]

           J. Les (Chair): Thank you very much, and thank you for bringing to us this morning an extensive written brief. We certainly will be reviewing it in detail. Are there any questions from committee members at this point?

           V. Anderson: Thank you, Mr. Lowes. You talk about aboriginal rights in relationship to land. There are different questions there. Have you any comments? You haven't made any comments here, unless they've overlooked it, on what's discussed as aboriginal title.

[ Page 336 ]

           K. Lowes: When you read the document closely, Mr. Anderson, I think you'll see that when I talk about aboriginal rights, I include aboriginal title in that definition. Conceptually, the Supreme Court has said that aboriginal title is a subset of aboriginal rights rather than either something distinct or the other way around.

           Aboriginal title, in my view, really boils down to a right of occupation. It's clear that it's more complicated than an aboriginal right, for example, to hunt or fish, but it is conceptually an aboriginal right. What the court has said about aboriginal rights applies equally to aboriginal title and other kinds of aboriginal rights.

           V. Anderson: Is there a distinction between you using the terms "right of occupation" or "right of ownership," or is that the same thing?

           K. Lowes: No, it's a different thing. That's where we get into extremely complicated law, if you read Delgamuukw — extremely complicated law. The classic conceptual model is that aboriginal title is a burden on the title of the Crown, something like a mortgage.

           J. Les (Chair): Any further questions? If not, thank you very much for visiting with us this morning. We are, as I said to you, very much appreciative of the fact that you have an extensive written submission.

           The next presenter this morning is Owen Anderson. Good morning.

           O. Anderson: Mr. Chairman, good morning.

           My congratulations to the government and this legislative committee for your role in raising the level of discussion about such a fundamental relationship that is facing us as British Columbians — that is to say, the relationship between our first settlers and those who came a little later.

           My name is Owen Anderson, and the reason I've appeared today is that I have, I think, kind of an interesting background. I run my own business now called the Hawthorne Consulting Corp. and have done so for many years. Prior to that I have worked for both the government of Alberta and the government of Canada, and I've also done work for various Indian groups across the country and in some other countries. I've seen this issue from many different angles, and that's why I jumped at the opportunity to share some of my thoughts with you this morning. I appreciate it.

           One of the other jurisdictions I have visited to see what they have done on this issue is New Zealand. They have a treaty commission there that is working particularly well. They deal with each issue on a one-on-one basis. It's an organization that is run by New Zealanders and Maoris working together. It's quite successful, and I was quite impressed when I was there visiting.

[1030]

           Australia has done some very good things recently, particularly in transferring lands in fee simple to aborigines as they reach settlements. That's a very important distinction, as you know, from the traditional way they've been running things. I think that is a bit of a historical breakthrough there, to give people that option when they reach a settlement.

           In the United States I spent a lot of time last year working with some of the Alaskan native corporations. If you want to take a look at that model, it's quite interesting. What they've used is a corporate or company model, and when they reached a settlement, the members of the corporation received shares in this corporation. Some of those corporations have been very successful. Like any other group of businesses, you can ferret out stories of success or failure, depending on what you want to look for. Certainly, some of the ones I visited were very businesslike and were real success stories. Another model is the corporation model with shares.

           I also spent a fair amount of time in Mexico, where they have taken an approach almost totally emphasizing education. They've got something like 55,000 teachers working out in the Indian communities, and that's their number one emphasis.

           Well, ladies and gentlemen, we know that for many thousands of years European civilizations and North American civilizations developed separately, and it has only been 500 years since Columbus invented the here-then-are-the people-of-God: Indio. This word "Indian" has a lot of misunderstandings about it. It's not about India, and it never was. Actually, it's Italian. Indio means "the people of God."

           When he came upon the Caribs and those islands — I've also worked in those islands, as a matter of fact; I've been taken through several Gardens of Eden there on different islands — and when he saw this group of people he said: "Indio. Here, then, are the people of God." We've had this history for a few hundred years.

           The Canadian story, of course, is the Indian Act, which was for the protection of Her Majesty's subjects and the creation of reserves as a place to protect Her Majesty's indigenous subjects. I've had a chance to tour many of these communities right across this country, including the north and all parts of Canada. I kept a log of the questions I asked in the hundreds of communities that I visited, and I always asked: "What's important to you? What are your priorities?" I'm very happy to report to you today. This is my chance to report to you this giant survey that I did over a long period of time with hundreds of people. The two dominant answers were:

           1. "We want an education for our children that is equal to the education that other Canadians receive." That comes through as number one, over and over again, wherever you are.

           2. "We want the opportunity to participate in the economy. We want to be able to get jobs and engage in business, as any other Canadian." Ladies and gentlemen, this is a summary survey of hundreds of people that I asked that question of right across this country.

           What is the issue? I believe that setting up the communal system of lands set aside for the use and benefit of Indians was inappropriate, as a starter. It was wrong in its execution through the Indian Act. For the numbered treaties, it was one family, one quarter-section. This is really interesting. This was the same

[ Page 337 ]

model that was later used for the Homestead Act. When you came over and got a homestead, you got a quarter-section. The treaties were based on 160 acres — these were all the numbered treaties — per family. What was the flaw, then? Well, the flaw was in making it communal.

           Around the word, people have awakened and realized that communal systems don't work. We pretend not to notice and set up processes to create more communal forms of ownership. We say: "Well, if this doesn't work, let's make it bigger, and that will make it work." It won't work. The basic system must be opened up to create freedom of choice. We have to realize that what we have created through this system of living museums cannot work. Setting people apart and keeping them from participating in the economy is a major disaster.

           Let me review the process of giving out land grants in Canada, leading up to my suggestion. Let's start with the Canadian Pacific Railway. This was a very good deal. One mile on either side of the railroad was the motivation and reward for building the CPR and tying the nation together. The result was the present-day five distinguished companies that resulted from the breakup of the old CPR.

[1035]

           Two, the Homestead Act. A quarter-section per family was awarded in fee simple title. If you lived on the homestead and you agreed to break or clear an agreed-upon number of acres for an agreed minimum of time, you got clear title. The result was the famous, almost mythical family farm, which brought stability and ownership to so many thousands of Europeans who saw the CPR ads and came to Canada to start life in a new-found land and become landowners. This formed a foundation for their children and grandchildren to get educated and move to the city.

           Let's move to the issue of Métis scrip. Money or land was awarded to the Métis, and this scrip could be traded or sold. Now, there are some notable exceptions we all know about, but in general, this was a very successful transaction. This helped many Métis people get a start. Many of our most distinguished people can trace back to this Métis heritage, but again, the key point here was that your scrip and your land could be traded and sold.

           Now we come to the numbered treaty process. Depending on which treaty you want to talk about, there were land grants of 120 to 160 acres per person or family set aside as land reserve for the use and benefit of Indians. This is the point where the problem was initiated. The colonial belief was that Indians had to be protected. The land grants in many ways were remarkably fair and even-handed when you look at the big picture, which is that the European settler, the CPR opening up the west and the Indian tribe or band family were allotted almost precisely the same amount of land.

           I think this was a very fair and open system. The key difference was that the European got fee simple, and the native American Indio got communal property held in trust by Her Majesty. That has made all the difference and still does to this day.

           With your homestead, you could farm or subdivide. You could mortgage or sell and move to the city. You had freedom; you could plan and choose. With the treaty land held in trust for you, you were separated and dead ended. You could not mortgage, trade or sell on the open market. There was a flaw in thinking and in execution of what could have been a good start.

           A fair and generous land policy was part of the original plan, but that flawed thinking now needs to be corrected. Let's not repeat the error of thinking that if communal ownership doesn't work, more of it will solve the problem. It will not and cannot.

           I believe that people ought to have a choice as to existing reserves. If they want to keep the 800,000-or-so acres that are set up as existing reserves in British Columbia, we should not take that away unless people vote to change the system to suit their aspirations.

           Members of the legislative committee, give people an option. For any future transfers, give people a fee simple option. I believe this is your great challenge. If you can meet this fundamental challenge, the rest of it — education and participation in the broader economy — can start to happen. Economic development will follow.

           I'm not saying it won't be difficult. Since we have allowed the system to go on for such a long time, we know we have created serious problems in the economy, in the society, in the political relationships and in the ability of people to get on with development, but as I have shown in some of the other examples in Alaska, New Zealand and Australia, good policy can happen. More importantly, old, bad policies can change.

           The communal reserve that we offered was a Trojan Horse with devastating consequences. It was a disaster waiting to happen. The government's offer of reserves was an invitation to segregation and isolation. In the 1800s, our political masters — if you read their diaries they kept at the time and the books they published — believed that Indians were not going to be around very long anyhow, and that they were a broken people and should be treated as wards of the state.

           Such was the nineteenth-century thinking, but we should not recreate that kind of thinking in our day. The struggle has always been for an opportunity to compete, to get an education equal to the education of the person down the road to compete for that real job. Once in the trap of the reserve — no matter if it is gold-plated — people will be alone and forgotten. Being equal requires the confidence that comes from participating and being in the mainstream.

[1040]

           My conclusion is to allow existing reserves to move to fee simple. I do not advocate doing this by fiat, but as they have done in Australia, by giving people the option. As to future settlements, the fee simple option should take place just as land grants to the CPR and to the homesteaders did, which gave people a sense of real ownership, a chance to get started and get into the economy. One of my questions I would then put is:

[ Page 338 ]

should treaty lands be transferred in fee simple as an option for settlement of future land grants?

           Ladies and gentlemen, thank you very much for the opportunity to appear before you this morning.

           J. Les (Chair): Thank you very much for making your presentation to us. Are there questions?

           D. MacKay: Thank you, Dr. Anderson. When you started off, you mentioned New Zealand and the fact that you had been down there and found it interesting in that they were dealing with people one-on-one down there. Could you elaborate a little bit on that?

           O. Anderson: They have a very good relationship going, and they've set up what is called a treaty commission. It's kind of like you have the Legislature on one side of the street, and about a block down you have this huge building — and there are a lot of people working there, I have to say — called the treaty commission. It's worked equally by Maori people and New Zealanders.

           They seem to have worked out a pattern of working together. If you walk into a bank across the street there, chances are you're going to be served by a Maori person. If you walk down our street here, chances are you're not going to be served by a native person. They seem to have worked out a way of working together on their committees and commissions.

           They deal with things on a one-on-one basis, where they work it through. They do the history. They do the analysis, as has been described earlier. Then they sit down and work out a workable agreement through that commission, which is authorized by the Legislature. Again, as with all these models, you can easily find people to find the flaws in them, but I recommend them. I think lots of other people have given long and serious thought to this issue, and there are some good models out there for us to look at.

           J. Les (Chair): You spoke of the tragedy of communalism. When I contemplate what seems to be the direction of recent treaty-making in British Columbia, aboriginal rights are communally expressed over a very large area of land, as in Nisga'a, for example. The Nisga'a entitlement lands were about 2,000 square kilometres, but the surrounding area has some very significant aboriginal rights that remain, which are included in the treaty and which need to be resolved and reconciled with provincial law-making ability.

           My concern is that the administration of this province could be severely hamstrung, which would cause great economic difficulty for the province as a whole. I wonder if you had any insight you could give us into that.

           O. Anderson: I think the worst economic difficulty is the one that never gets recorded. I was in New York a couple of months ago, and I was trying to raise money for a client. They said: "We're not interested in British Columbia until you solve the issues you have with your native people." I said: "Well, what about the merits of the project I'm bringing in?" He said: "No, I can't talk to you about that until you've solved that other one. Then you can come back." It's that kind of thing that doesn't get reported. Nobody hears about it, but it's the economic things that don't happen that worry me — the people and the capital that should be coming here and the trading things that should be happening with all that we have to offer the world.

[1045]

           J. Les (Chair): Beyond that, the requirement is potentially for consultation in a host of areas between provincial and other governments with potential aboriginal governments. There's a very simple statement that businessmen often make: time is money. If you're caught up in a multilevel consultation process for any government legislation that needs to be passed or any economic decisions that have to be made by business people, I wonder whether you're going to be able to go to clients in New York and get them interested in British Columbia in any event.

           O. Anderson: Well, I'll just have to close my office in Blaine. After they closed the PACE lane — you said time is money — it takes too much time to get back and forth, so that business is gone, as are many others. Similarly, I think we have to move in the direction of simplifying things and speeding things up for the type of people and capital we want to attract.

           G. Trumper: Thank you for your presentation. I just have one question. You pointed out the two most important issues that you've heard in talking to the aboriginal people, which were economics and education. Have you heard any thoughts on fee simple from them?

           O. Anderson: Yes. I've discussed this in many different forums, and it's extremely controversial. If you take this into a meeting, you'll have some people calling you up afterwards and saying, "Thank goodness you're speaking for fee simple," and you'll have other people saying: "We would appreciate it if you'd go back to Alberta and never speak again." Clearly, I've had both of those responses.

           It is controversial. I think people are very divided because they've been that told this is their protection, and they've been told that it is in their interests to be in this communal system. It must be very threatening when you have people come in and say, as I do: "That system doesn't work." It doesn't matter how big you make it, you can't make it work because the theory's wrong. My recommendation is to try to move into fee simple as quickly as you can so that at least you can own your house, get a mortgage, get your business going and get some financing. I've been saying that clearly, but the answer is that it's very controversial.

           P. Nettleton (Deputy Chair): I was pleased that you referred to the Alaskan experience, to the various Alaskan corporations and their varying degrees of success. I think it certainly serves to highlight some of the

[ Page 339 ]

risks associated with the fee simple approach. As well, I thought you sought not to emphasize those risks, but they're certainly considerable. First nations will want to give the risks associated with the fee simple approach considerable thought. From our perspective, I thought your presentation was very helpful. Is that an option we want to explore and put to the public? Thank you for your submission.

           B. Belsey: Do you have any thoughts on the type of government that first nations are looking at, such as the municipal type or maybe what we have with the Nisga'a treaty?

           O. Anderson: I find there's such a range of definitions and wishes. Whichever meeting you choose to go to, you'll get one that ranges from a kind of province to one that ranges to a supermunicipality. I guess I'll call that the range. It's like bringing up the question of fee simple. I don't see an agreement on that definition as you move around the province or the country.

           J. Les (Chair): Thank you very much, Dr. Anderson, for visiting with us this morning. I very much appreciate your input and insight.

           The next presenter is John Richards.

[1050]

           J. Richards: Good morning. I teach at Simon Fraser University, and it is extremely painful for a professor to be constrained to ten minutes. I shall do my damnedest.

           In a former life, I was an NDP MLA in Saskatchewan for one term in the 1970s. I was roundly defeated when I was up for re-election the second time and have been obliged to earn a more or less honest living ever since.

           J. Les (Chair): Careful, careful. [Laughter.]

           J. Richards: Besides teaching at Simon Fraser, I also work part-time at the C.D. Howe Institute, which is this infamous policy institute in Toronto. I constitute the fuzzy left wing of the outfit and have guilted the rest of them into undertaking a series of publications on aboriginal policy. I think, as do you, that aboriginal poverty and relations between aboriginals and non-aboriginals is probably the single most important social problem facing the country — in western Canada, unambiguously.

           What I have distributed to you this morning is the draft of the first of our C.D. Howe publications. This will be published in late November to early December. We're undertaking, as I said, a series of publications, of which this is the first. There'll be others on other aspects — band governance, etc. It includes some special census data that was run on the '96 census for this purpose. I will come to the question at the end, but let me very quickly take you through the contents of this document.

           What I'm doing, in part, is stressing the extent to which aboriginals, like other Canadians, have moved from country to town, the extent to which aboriginals are leaving reserves. To give you just a snippet of information: by one definition in the census, there are 800,000 aboriginals in Canada, of whom 49 percent are classified by the census as urban. Among registered Indians who qualify under the Indian Act, about 660,000 last year, 42 percent live off-reserve. In British Columbia, 48 percent live off-reserve.

           We can go through a host of statistics, but the trend is undeniable that over the last half-century there has been a massive migration among aboriginals away from reserves and away from the country to the city. It's complicated, of course. There are some urban reserves. This is a very complicated matter inasmuch as the data are also far from perfect.

           The next point is that all is not well in the cities. While the economic outcomes for aboriginals who are off-reserve is unambiguously better, on average, across the country than for those living on-reserve, far too many urban aboriginals are concentrated in the poorest of urban neighbourhoods. Winnipeg is the most dramatic example of this.

           As you'll see if you read through that document, what I have done with this is to concentrate on eight major metropolitan centres, from Montreal west to Vancouver, looking at their aboriginal populations and disaggregating by kind of neighbourhood. If you use the definition that I've used in this document of census tracks with more than twice the average Canadian poverty rate, you'll see the extent to which aboriginals are concentrated in very poor neighbourhoods in all Canadian cities.

           Furthermore, if you look at education outcomes — and I agree with Dr. Anderson, the previous speaker, that that's a crucial variable to look at — you'll see, again, the importance of this poor versus non-poor neighbourhood aspect in terms of education achievement by aboriginals in our cities.

           Thirdly, you'll also see some significant difference in terms of the employment data, which, again, I'm not going to go into except to make one very brief reference. All right, five minutes are up, class, and we could have spent the entire term on that subject.

           What's to be done? Again, this is a subject about which most of you probably know more than I. What I'm going to bring to the table this morning is a small portion of the puzzle which I think significant and conclude with a recommendation with respect to a component of what I would like to see in the referendum question.

[1055]

           If I didn't say it before, I say it now: I do congratulate your government and you as individuals for being prepared to conduct this referendum and to invite British Columbians of good will, aboriginal and non-aboriginal, to think very hard about this problem. This is the social grace that I should have said at the beginning, but I say it now. I am appreciative of the work that you're doing here.

           I want to suggest that there are two strategies that ought to be pursued. One of them I borrow from my friend Allan Blakeney. If you would be so kind as to

[ Page 340 ]

turn to page 15 of the document in front of you that I circulated, I have quoted Allan Blakeney at some length. I would just like to read for your benefit his conclusion on the importance of schools.

           The case can be made that in urban centres, we have urban aboriginal schools, which while following the same curriculum, go far further to engage aboriginal parents in their children's outcomes. As long as we have these disastrous educational outcomes — and they're better in the cities than they are on reserves, better in the cities than they are in the country — there is no way that aboriginals can take a meaningful part in modern industrial life.

           We in Canada, given divisions over religion, divisions over language, have made extensive use of multiple school systems. It's a controversial subject. Many people are opposed to the use of it on the grounds that it divides as a function of religion and language, but there are great virtues, too, in accommodating what are undeniably significant cultural differences. I would argue that urban aboriginals, by and large, want simultaneously to participate in mainstream industrial and social life and, in a way that is unique to them, preserve matters cultural.

           Anyway, I quote Allan Blakeney.

           "I see it as next to impossible for us to be able to create reserves which provide an appropriate economic base for all or most of the growing population of aboriginal people. We know that some will wish to remain [on-reserve]…. We know that some will move to the cities and integrate with the economic mainstream. We know that some will move back and forth, a transitional group…. [Aboriginals] leave the reserve because there is no economic opportunity for them and particularly for their children. It seems to me that they return to the reserve because on the reserve they experience a sense of place…and also because on the reserve they have a level of cultural comfort greater than in the alien urban setting. Nothing much can be done about the [loss of] sense of place [once in the city]. However, something can be done about the sense of cultural comfort. If schools operated by aboriginal school boards and social agencies controlled by aboriginal boards can be created, it may well be possible to create a much higher level of cultural comfort and thereby permit aboriginal people to pursue economic opportunities without massive cultural deprivation."

A great deal more could be said about that. The second term could be devoted to that subject.

           I turn to the final strategic matter I want to address, which is perhaps the single most painful one. That concerns aboriginals and welfare. We have been parochial in Canada in the way we have thought about this problem. There are important parallels in the relation between aboriginals on welfare and the mainstream of society on the one hand and the problems faced by urban blacks in urban ghettos in the United States. The Americans, for the last quarter-century, have conducted a difficult debate among themselves as to what the humane response is in terms of social policy with respect to urban ghettos.

           We in Canada have been parochial on this subject and have largely ignored it. All the while in western Canada, neighbourhoods have been emerging that in many ways are comparable to ghetto neighbourhoods in U.S. cities.

           Again, I'm guilty here of summarizing what should be the subject for the third term of this course: to talk about welfare reform policy, both in the United States and in Canada. To dramatize with just one statistic — the numbers here are all awful — between a quarter and a half of the caseload of the social service agencies from Manitoba west to British Columbia are aboriginals. The statistics on incarceration rates, of course, are worse.

[1100]

           The one glimmer of interesting reform, I would argue, writ large over the last decade — and as an ex-NDP MLA, it is some pain for me to say it — is Mike Cardinal's welfare reforms in Alberta. They were maligned by many in social service agencies, but the irony is that in many instances, they worked.

           In the context of a difficult fiscal situation in Alberta in the early 1990s, somewhat comparable to what you're facing in Victoria now, the Social Services minister was from the famous aboriginal Cardinal family. Mike Cardinal was the name of the minister. To say it very quickly, what Alberta did was to put far more emphasis on welfare-to-work programming and render access to untied welfare benefits for the employable far more difficult.

           I leave it to you to have a look at the time series on welfare use across provinces, which are really dramatic — the differences that took place in Alberta post-'93. It declined from in the order of 7 percent to 2 percent of the population in receipt of social assistance, whereas in this province there was an increase in the ratio up to the mid-nineties and then somewhat of a decline since.

           This is a very painful subject, but it would be dishonest not to address it. Finally, in reference to this, I point you to have a look at some point at table 4, which is opposite page 10. If you look at the employment rate — by which is meant the percent of the group that has employment — in the poorest of neighbourhoods across Canada's major cities, what stands out is how much better is Alberta. In Alberta cities, 38 percent of the aboriginals who live in the poorest neighbourhoods have employment, whereas in the Manitoba-Saskatchewan cities, the comparable statistic is 27 percent. In Vancouver, it is 31 percent.

           You can try to explain this as a function of Alberta's having been prosperous, but I don't think it works. You really cannot explain this phenomenon other than by the fact that Alberta's social policy placed far more emphasis than in the three other provinces on welfare-to-work transition and work supports. This is to be part of any policy.

           Were I addressing federal officials, I would stress that these problems of welfare dependency among aboriginals are far more acute on-reserve than they are off-reserve. You will see that in the document, there's a very brief appendix to it.

           In conclusion — and I realize I don't have three terms to lecture anymore — I would personally like you to include, when you do draft your question, some

[ Page 341 ]

passage in it that addresses the significance of the off-reserve and urban aboriginal experience. It is so crucial. It is so important, given the last half-century's migration among aboriginals to cities, that there cannot be any workable relation among our communities so long as the off-reserve and urban context works so badly.

           J. Les (Chair): Thank you very much. I'm sure there will be questions.

           G. Trumper: Thank you very much for your presentation. It has given us a lot of food for thought. You've raised some issues that I think we are wrestling with, with the off-reserve aboriginals. In most of the discussion, the province has not really included that aspect.

           Yesterday we had a very interesting presentation regarding education and some of the programs that appeared to be working with them. It was not separate. Maybe that's a better way to put it.

[1105]

           Considering that we are a provincial committee, and so what we're obviously dealing with are the issues that we have some control and input into, do you think that under provincial educational legislation, whether or not it is on — as you put it — aboriginal schools with boards or whether it's integrated…? Do you think that should possibly be something that the province mandates to take place?

           J. Richards: I would like it. I am cognizant of Gordon Gibson being behind my right shoulder. He is a friend and somebody I respect who has probably thought about these matters more deeply than I have. He chuckles and says to me: "John, given your NDP background, you always want to have these things organized by the state in the form of formal systems. Hence, you want to call this an aboriginal school system. I'd like to call it a charter school system, whereby there would be certain schools, publicly funded, which would have an aboriginal characteristic."

           If you'll allow me a very personal anecdote, I grew up in Saskatoon, and my high school is Nutana. Any of you who know Saskatoon will know that Nutana Collegiate has become an inner-city high school. With all credit to them, the school administrators — principal and vice-principal — decided that they would make of this school a pilot aboriginal cultural school.

           It works very well. It's within the public school system. The same boring grade 10 algebra is taught in Nutana Collegiate as in the suburban white schools, and it has the same calibre of teachers as elsewhere, but tremendous effort is made to legitimize and discuss aboriginal culture. Courses on aboriginal history are taught that are not taught elsewhere. It works. I would like to see a lot more rigorous evaluation done on it, but it is a very worthy experiment. We need far more of these.

           Far be it from me to say that there is nothing happening now. Grandview school in East Vancouver, close to where I live, is a valid experiment in trying to render elementary schooling more amenable.

           What I think is happening in western Canada is that there is such a dramatic social problem of poverty among aboriginals who are migrating between city and reserve, or between country and reserve, depending on whether they have registered status. From Winnipeg to Vancouver, this is a major problem. I don't think it's good enough that we rely on the isolated experiments of a Nutana Collegiate or a Grandview school and the goodwill of a particular school board in one community, or a group of teachers who happen to be passionately interested in this, or a particular aboriginal group that get themselves together.

           This is something that is very major. Here is a major social change that has taken place in western Canada in the last half-century. If we were having this conversation in 1951 at the time of the census at that point, only 7 percent of aboriginals were urban. They were bitterly poor, but by and large, their families were intact. They were living in northern British Columbia and northern Manitoba, etc., not constituting part of the urban poor in Winnipeg through to Vancouver, which is now the case. Until we include this recognition and serious attention to aboriginal realities, we are not going to square this circle in any way, shape or form.

           I'm sorry. I went on for perhaps too long.

           V. Anderson: Thank you, John. There are many areas that I'd like to follow up, but I'll do that on another occasion.

           J. Richards: Sure. We'll have coffee sometime. Give me a call. I'm always around.

           V. Anderson: Yeah, we have a common background.

           The area of aboriginals living off-reserve has come up. As we've asked questions here, previous responses that people have brought us when we raised the question that were: yes, there is a concern but no suggestions on how we deal with it. Our problem or our opportunity here is in the questions we put to the referendum, which has to be our focus at the moment.

           What kind of question can we put in as a referendum question to raise the principles you're concerned about with the off-reserve aboriginal people, to test out with the aboriginal and non-aboriginal whether this is a major concern that should be part of our treaty-making discussions? Have you a suggestion — if not today, then before we get to the question-making?

[1110]

           J. Richards: If I give what may appear to be an academic answer, I apologize. I've thought about this. I could have spent my 15 minutes on a couple of wordings that I had thought about, but it is presumptuous. You people have a much better feel than I do of how aboriginal communities are responding to your referendum proposal and how rural British Columbians are.

           All I bring to the table is a suggestion that there be reference in your wording somewhere to the commitment of British Columbians, via their provincial government, to undertake programs, on a very high

[ Page 342 ]

priority, intended to improve the educational and the employment outcomes of those aboriginals who choose to live in our cities. It strikes me that you can't, in the context of your referendum question, address the complexities of the problems that are raised, but you can signal in good faith that you are aware and are not ignoring chunks of East Vancouver or chunks of other cities in British Columbia where these problems are acute.

           I'd be delighted to have the coffee with you and hear your wordings and give you a few more detailed suggestions, but it's presumptuous for me to say how you draft that.

           V. Anderson: May I ask that you, along with others, be presumptuous and send us some questions? The other part that we're hearing is that the questions need to be very simple, very straightforward and very readable for those who have maybe a grade 7 education.

           J. Richards: Too modest you are, Mr. Anderson. I respect your having thought through these social problems in British Columbia very hard for many years.

           If you give me your card with an e-mail address, I would be delighted to pour some more verbiage on you.

           V. Anderson: Thank you.

           J. Les (Chair): We have time for one more question from Dennis MacKay.

           D. MacKay: I'll try to make it quick, John. I think you may have answered it already, but I have a question. I live in northern British Columbia, and I have visited several reserves up there. I see there are schools there built on reserves primarily for the native children. You talked about the appalling rate of the graduation of native students from the high school system. You're not suggesting that we wander from our basic provincial curriculum in those schools. You're just suggesting perhaps there should be some greater education directed at natives on reserves, teaching them their own cultures. Can you elaborate on that?

           J. Richards: In my presentation and in this document, which is to be published by the C.D. Howe Institute, I've very consciously limited myself to the urban context. If you ask me, fundamentally my fear is that reserves can never be healthy societies until there is an employment rate that in some way, shape or form approximates that in the rest of society. The federal government has allowed there to be these extraordinarily high welfare-dependency rates built up on reserves, and to some extent you can address that via treaties and transfer of employment-generating assets.

           My prediction will be that over the next half century — if we're talking in these grand terms, in sweeps of 50 years — there will be further migration off-reserve and into mainstream society among aboriginal people. Ultimately, it is work, family and education that make life happy and livable, whatever be the culture.

           Back to your immediate question about school boards, my real experience comes from the Prairies. In dealing with multiple school boards, we can talk about it in the context of Quebec, perhaps, and the linguistic ones. One hundred years ago on the Prairies we had a lot of religious bigotry between Protestants and Catholics, and the systems didn't work very well.

           In the last century, the good Canadians that Prairie people are, we learned to accommodate a lot of cultural and religious differences among ourselves. We have still preserved so-called separate school systems. There is a "public school system" and a "separate school system" in the Prairie provinces, and variations on this theme exist throughout Canada.

[1115]

           This has certain desirable effects. There is a certain competition for students that takes place where parents may decide to send their children to the somewhat more academically oriented so-called separate school system. I think of a left-wing socialist Jewish professor in Winnipeg, who taught me many years ago, insisting that his children attend the Catholic school system because he thought it was more academically competent.

           Were there to be some urban schools in Winnipeg through to Vancouver designated as aboriginal schools, I would insist that it would be a free choice as to whether parents send their children there or to the ordinary school system. You would have the same core curriculum, as is the case in these situations I am describing. Governance would be a crucial matter. Unfortunately, band governance is not good in most instances. These would have to be democratically governed by boards elected by those who send them to such an aboriginal school, as is the case in separate schools.

           Alternatively, I am quite cognizant that there are those who think that the charter school system is the way to bring diversity to the school system and to accommodate and recognize parents wanting diversity in the school system. The core argument for doing this remains the same throughout; namely, the success of schools to some considerable extent depends upon parents taking an interest. It is true with my daughter. I worry about her grade 11 algebra. I'm sure you have collectively worried about your children and wanted the best for them and taken an interest in their schools.

           We've got to do something analogous so that aboriginal families in the urban context feel that the schools are something that are there for them and are sensitive to aboriginal cultural requirements and interests, all the while teaching the same core, boring, grade 10 algebra that all kids get across the province.

           I'm sorry. I hope I haven't been too diffuse in answering you, sir. Come back at me.

           D. MacKay: For the sake of time, I would appreciate talking to you a little bit further after, if you're still around, John.

[ Page 343 ]

           J. Les (Chair): We'll have to leave it at that for now, unfortunately. Thank you so much for coming. I could think of a few dozen questions myself I would like to ask you. We'll perhaps get together again.

           The next presenter is Doug Massey.

           D. Massey: Ladies and gentlemen, I hope that I can get within the ten minutes as well. I don't have a title, but the chief of the Tsawwassen first nation gave me a title. She called me the mouth of the Fraser, so we can go from there. My name is Douglas Massey. I've lived most of my life in the municipality of Delta. I've been married for 46 years, and I have five children and nine grandchildren, all born native to this land we call British Columbia, Canada.

           As a native-born Canadian of some 68 years, I have enjoyed the life and freedom to fish and hunt anywhere in B.C. within the confines of our laws and regulations. Much of that freedom will be lost if we continue treaties patterned after the Nisga'a AIP. Over the past 50 years of my life I have owned and operated businesses associated with B.C.'s once-thriving fishing industry. This business was established by my late father, George Massey.

           Besides that, I have served all Canadians in the fishing industry, both non-aboriginal and aboriginal. Disaster struck this industry when Canada created a separate aboriginal commercial fishery. It actually started the downfall of the fishing in this province. I've served some ten years on Delta municipal council as well as on many advisory committees regarding the environment and the habitat of wild fish stocks. I have voluntarily given over 1,000 hours of my time to treaty-related matters — just treaty-related matters, never mind the other time I've given to the whole matter of the treaties.

[1120]

           Over the past six years I have served on two committees associated with the B.C. treaty process, one being the Delta treaty advisory task force appointed by Delta's mayor and council. They in turn pass on our recommendations to the Lower Mainland Treaty Advisory Committee, represented by Delta's own councillor Vicki Huntington, whose job is to reflect the concerns of some 12 municipalities in the lower mainland to the senior government negotiators at the table. She is the sole representative of 12 municipalities at the table.

           If more than one treaty is in progress, Councillor Huntington is expected to represent all 12 at each table. There should be a representative, in my opinion, for each municipality affected by the treaty in their city or municipality. I didn't make that part of my final recommendation, but I think it's certainly one I would have included.

           I was also appointed to the Tsawwassen consultation group by the senior governments involved directly with the Tsawwassen first nation treaty. Within the committee, I also served on the fisheries subcommittee, which is supposed to review fish, salmon and non-salmon species allocations demanded by Tsawwassen first nation and proposed by Canada. Despite the members of the fisheries subcommittee of the Tsawwassen consultation group unanimously condemning any reference to a separate commercial contracted obligation, Canada insists on going forward with what they now call a harvest agreement guaranteeing a 25-year contract to a given number of salmon and non-salmon species.

           It has long been the Liberal Party of B.C.'s position that they would not accept any form of a separate commercial fishery, yet the provincial negotiators feel that they have an obligation to support Canada's present proposal for a separate contracted agreement for salmon and non-salmon species. The reason is that Canada cooperated with the province in allowing that an ALR designation — an agricultural land reservation designation — remain on all lands proposed to be given to the Tsawwassen first nation, despite the fact that this designation could later be removed by a mere application to the province. Some trade-off. I don't think that's a fair way to negotiate.

           The present provincial government has yet to give its approval to Canada's fishery proposal to the province and to the Tsawwassen first nation. Canada is proposing a separate contracted allocation to the Tsawwassen first nation, claiming jurisdiction over all title and non-title fisheries. B.C. should be studying every possible legal means to prevent Canada from invoking a separate designated commercial fishery that would drive the final nail in the coffin of the Canadian citizens now involved in the wild-salmon fishery — those that are left. There's not very many left. They're pretty well wiped out.

           As far as the jurisdiction is concerned, I cite two examples that could challenge that jurisdiction. The main thing in this issue is jurisdiction. No. 1: a court case between the Attorney General of B.C. and the Attorney General of Canada was held in the Supreme Court of B.C. in 1914. It was then appealed to the House of Lords and the Privy Council in England, as there was no Supreme Court yet in Canada. I understand the final results of this case concluded that B.C. did have the legal power to reject any proposals by Canada that were not in the best interests of British Columbians involved in the fish resources of B.C. without the approval of B.C. A copy of the law journal is available.

           I've kind of mixed it up a little bit. There are two decisions given by the Attorney General's department. How do you say it when somebody reviews a decision of court, whereby they have given their opinions as to what the court case came out with? Basically, those are in the hands of the Attorney Generals' office, and they're considered confidential. I would think that you people should have access to those documents to determine what really took place at that particular time.

           In a letter dated July 3, 1992, from the then Minister of Agriculture, Fisheries and Food for British Columbia, Mr. Barlee, to the Minister of Fisheries and Oceans, it was stated by B.C.: "The right to harvest fish in a non-tidal water in B.C. is the jurisdictional prerogative of British Columbia. The federal government therefore intends to issue a right to harvest which is beyond the federal jurisdiction." I've enclosed a copy of the letter. It

[ Page 344 ]

goes into quite a bit more detail than that. These legal determinations are, as I said, presently in the hands of the B.C. Attorney General's office.

[1125]

           In this case, I urge B.C. to use these findings to stop this injustice. If the constitution of Canada's boundaries were expanded, but not broken, to accomplish a commercial allocation to the Nisga'a in British Columbia, so too should these boundaries be expanded to include a guaranteed allocated share of the fishery to all other Canadians involved in that fishery, both recreational and commercial.

           The reason I say that is that Mr. Robin Dobson made a statement at a meeting. When he was asked who is looking after the interests of other Canadians involved in this fishery, he said that it was not his mandate, that his mandate is to look after the interests of the natives in this case and that he has no responsibility for whether or not there's anything left for anyone else.

           I propose the following questions for the referendum on the matter of treaty process.

           1. Do you feel that the present provincial government negotiators appointed by the former NDP government should continue to represent the views of British Columbians at the negotiating table? I, personally, do not feel that the present negotiators have lost their long ties to the former NDP government.

           2. Should provincial negotiators be directed by the provincial government to not negotiate away the rights of some British Columbians involved in one resource, the fishery, to appease or trade for the cooperation of Canada's negotiators on other matters related to a resource or designation? I refer to the ALR designation that I had in the previous statement.

           3. Should the provincial government pursue the legalities of British Columbians to have a say in the management, enforcement and control of the title portion of B.C.'s fishing resource?

           4. Should the provincial government oppose, with every legal and political means, any proposal by Canada to provide a separate aboriginal fishery? They are presently still accommodating aboriginal pilot sales. You've got different names. You've got aboriginal fishing strategy, and now you have a harvest agreement. It doesn't matter what you call them and how you design them; they are all separate, commercial fisheries.

           5. Should historical aboriginal rights, when encompassed in treaties, be adjusted to meet the realities of today? I understand that there is a possibility that some of the aboriginal rights can be bartered in respect to some of those things. By "the realities of today," I mean the fact that you're allowed to go and hunt in any area using a .303 — all of these things that never fitted in their society historically but are used when that particular area is open for hunting or fishing.

           6. Should we give up any of our provincial parks, with the rights to enter, to the treaty process without a referendum? When my father first came here, there was a freedom to go anywhere in this province, to go to any lake, to go through any forest, without having the permission of anybody — except for private land — to carry out recreation, but I can see in the future that we are going to be faced with having permission to enter any lands to have the pleasure of doing the things that we all took for granted in the past.

           7. Should any land that has been created by European immigration for agriculture or other uses be negotiated away before those who created or farmed them have had the opportunity to purchase them back? I'll explain that a little further, and I hope I can do it in the time period.

           I speak specifically of those lands expropriated from four farm families and one large fishing family in my municipality some 32 years ago, land that was expropriated from them and then not used for the purpose intended. Expropriated pioneer families still occupy these lands under shaky, humiliating leases and have been denied the right to buy back their former lands. Every obstacle possible has been put in their way for them to actually carry out that legal right. The NDP government placed their lands in what they called a protocol agreement, guaranteeing the Tsawwassen first nation the first right of refusal for the next 20 years. If it takes 20 years for the negotiations to be completed, that's how much longer their former lands are going to be tied up, and they won't have the opportunity to buy them back. This was done without notifying these expropriated families yet providing other expropriated owners in the former Roberts Bank lands with that opportunity. Everyone else around them was given that opportunity — not them.

[1130]

           The protocol agreement is highly suspect as to its validity, bearing in mind the above. It should be investigated by the province as to its legality. I strongly feel that given the fact these people have been totally ignored and not properly legally notified, they have a strong case. That means they have to spend a whole lot more money to go to court and try to resolve this matter. They've spent over $100,000 of their own money right now, trying in vain to buy their property back, and they have been denied at every corner.

           I hope you will consider the concerns of a 68-year-old native Canadian to a higher degree than I received in my presentation and my brief in 1996 to the Select Standing Committee on Aboriginal Affairs, discussing the Nisga'a agreement-in-principle. I was cut off before I could even complete it. I've taken the opportunity to leave you with a copy of that submission. I spent one month plus $1,000 of my own money to prepare that brief, and then I was told that I should sit down, that I was over my time. They went on to allow a chief from Kamloops to come in and speak for three-quarters of an hour right after I finished making my presentation, so I didn't feel that I was being treated as a Canadian.

           I'm grateful that you have given me the opportunity today to express my personal views, mouth of the Fraser views, on this issue. I speak as a British Columbian and a proud Canadian.

           J. Les (Chair): Thank you very much, Doug. Are there any questions? It appears not. I appreciate you bringing your presentation in written form and also the

[ Page 345 ]

one you made in '96, the one you didn't have a chance to complete back then.

           D. Massey: I think a lot of those same points that I made in 1996 — not only me, but many, many other British Columbians made at that particular time — are still applicable in today's hearings. Perhaps you could give some thought to having somebody go through those.

           J. Les (Chair): We'll certainly do that.

           D. Massey: It would be a great help, I'm sure.

           J. Les (Chair): Thank you very much.

           Our next presenter is Mayor Don Bell, speaking, I believe, on behalf of the Lower Mainland Treaty Advisory Committee.

           D. Bell: Good morning, Chair Les and committee members. Thank you for the opportunity to speak to you today. By way of introduction, my name is Don Bell. I'm the mayor of the district of North Vancouver. I'm also the chairman of the Lower Mainland Treaty Advisory Committee, otherwise known as LMTAC. On behalf of the Lower Mainland Treaty Advisory Committee I will present LMTAC's interest in treaty negotiations, our perspective on the BCTC process and considerations for a referendum.

           I should begin by stating that LMTAC has been concerned about the referendum process since it was initially proposed by the Liberal Party while in opposition and now as the government. To this end, we had a frank and in-depth discussion on July 26, 2000, with Mike de Jong, the Liberal MLA and then–Aboriginal Affairs critic. A copy of the minutes of that meeting is attached to this presentation. Given that the government is committed to a referendum, we are pleased to be here today to provide comments that we hope will be of assistance to you.

           As an overview, LMTAC incorporates representatives from 23 municipalities and three regional districts — including the Greater Vancouver, Sunshine Coast and Squamish-Lillooet regional districts. As with other treaty advisory committees, LMTAC chooses local government representatives to sit at the various treaty tables in the region on behalf of the whole membership.

           LMTAC representatives act as advisors on community and local government issues to the provincial treaty negotiating team and provide input into negotiations with five area first nations. Three of those tables are active right now, but the five tables are Katzie, Musqueam, Squamish, Tsawwassen and Tsleil-Waututh. The three that are active are Katzie, Tsawwassen and Tsleil-Waututh. In addition, LMTAC provides support and guidance to lower mainland governments involved in the treaty process.

[1135]

           In 1993 the memorandum of understanding — the MOU, as it's referred to — signed between the Union of B.C. Municipalities and the then Ministry of Aboriginal Affairs created direct membership for local government on the provincial negotiating teams. This MOU essentially recognized that in a post-treaty environment, when representatives from Ottawa and Victoria and the particular first nation have completed their negotiations, it is our respective local communities and regional districts that must continue to live and work together with our aboriginal neighbours.

           Since its formation under this MOU in 1993, LMTAC has operated without a formal mission statement to guide the actions of its membership. Rather, as a self-defining organization LMTAC's mandate has evolved from the day-to-day work directly within the treaty process. In recent years LMTAC initiatives have become more diverse, and the committee has taken on new roles and provided a service function to the membership that goes beyond what was outlined in the original MOU. As a result, the need for a defined LMTAC mission statement was recently identified. In August of this year a formal mission statement and a set of priority roles were endorsed by the full LMTAC membership that reflects LMTAC's broad range of roles in and outside of the treaty process.

           The new mission statement is as follows: "LMTAC coordinates and represents the collective interests of local government, and through them their constituents, in defining and building relationships between first nations and other orders of government." However, while we are advisers to the provincial negotiating team, local governments are independent and accountable publicly elected bodies, as many of you are personally aware.

           Similar to many first nation leaders, local government elected officials have a very direct relationship with our constituents at the community level. In fact, there are many misperceptions about the linkages between local governments and aboriginal communities. The scope of these linkages varies from region to region and from province to province.

           Local government and first nations, however, share many important commonalities, and in light of the pending referendum, LMTAC believes it's important to highlight such commonalities. They include but are not limited to shared broad community objectives, for example, such as to maintain healthy populations, vibrant and dynamic economic systems and sustainable and productive urban living environments. Another is a shared interest in creating employment and regional economic development opportunities for our constituents. Several case studies in Canada and the United States highlight the ability of local governments and first nations to jointly pursue lucrative commercial and industrial enterprises and also strong community ties and accessible representational structures.

           Civic officials and aboriginal council members are the direct link to their constituents and often work well within well-established, community-based forms of governance. We also have a shared need to work together in the post-treaty environment. It is at the local or community level that the day-to-day relationships between first nations and other levels of government will take shape, particularly in the urban setting.

[ Page 346 ]

           An increased level of recognition of these shared commonalities by a wider population will assist in the efficiency of treaty-making. I understand that you have received many presentations and written reports from around the province. Recognizing that each area you visit will have its own unique perspective on treaty-making, so too do local governments that make up the lower mainland treaty advisory area.

           LMTAC is the largest TAC and represents B.C.'s most urbanized and populated region, the lower mainland. The lower mainland is currently home to approximately two million residents, roughly half the population of the province, and there are over 31,000 aboriginal people living here both on and off reserve.

           Treaty negotiations involve a multitude of complex and competing multiparty public policy issues, many of which are intensified by the interconnections between communities and organizations in the urban setting. Treaty-making in urban settings will need to account for and accommodate these realities.

           There are numerous reasons why urban treaties will be distinct from rural agreements. The implementation of treaties in urban centres is complicated by several factors, among those being a complex network of existing government structures and management regimes, numerous competing private interests, unique economic development and land use considerations. Important ones are limited available Crown land for treaty settlements, higher population densities — and with those, I might add, some of the social and economic problems that are associated — and an absence of past models to provide insight on how relationships with other governments may develop in the post-treaty urban environment.

[1140]

           In Canada, the United States, Australia and New Zealand — countries where there have been predominant aboriginal rights movements — there are few existing precedents that can be utilized to assess the socioeconomic impacts of comprehensive urban treaty settlements or to measure the impacts of local government participation in treaty implementation. The outcome of urban treaty negotiations may well have a more visible impact on both aboriginal and non-aboriginal communities, therefore, in urban rather than in rural areas.

           Treaty-making is about creating new relationships between future self-governing first nations and other levels of government as well as society at large. Many efforts are being made to give definition to this new relationship with land-based aboriginal communities in the B.C. treaty process. In particular, urban local governments have been actively working to advise senior governments on the unique inner connections between communities in the lower mainland and how treaties need to recognize the challenges of urban negotiations. It should be clear by now that with respect to treaty-making in British Columbia, one size does not fit all. Hopefully, post-referendum actions will reflect this important reality.

           During LMTAC's eight years as advisors to the provincial team we have recognized that the issues being negotiated at the table are really the same kinds of issues that our members deal with on a regular, almost daily, basis. The experience of local government in dealing with these issues, which are usually complex and often sensitive, can assist first nations in addressing these areas. To address areas of interest to LMTAC, we developed the key policy document entitled the LMTAC "Considerations Paper." This document is included in the binder which has been given to you and is publicly available on our website. I might add that it has gone out to all our member municipalities and has been endorsed by both the member municipalities and the regional districts that make up LMTAC. So it was a very public process that we went through.

           The LMTAC "Considerations Paper" is a detailed catalogue of social, economic and policy issues impacting communities. This paper catalogues substantive issues for local governments, including topics such as servicing, environmental management, agricultural protection and post-treaty intergovernmental relationships.

           The "Considerations Paper" also includes the LMTAC first principles, which are 39 statements that act as a framework to express broad local government interests on key treaty issues related to land, resources, governance and fiscal matters. The development of this document began in 1995 using an extensive, consensus-based process, and as you can imagine, it's no easy feat for 26 individual jurisdictions to agree on one, let alone 39 different principles for this complex process.

           Based on our participation in the lower mainland treaty negotiations and based on the interest articulated in the "Considerations Paper," local governments believe it is at the community level that effectiveness and endurance of the agreements will be tested. In reference to relationship-building at the community level, one project aimed at helping to foster better relationships between first nations and area local governments, of which I'm particularly proud, is the lower mainland community forum. This event was one of many successful forums held during the past year and sponsored throughout the province by the Union of B.C. Municipalities, UBCM. The summary of proceedings from this event is also provided in the binder that you have and on our website.

           In September 2000 approximately 50 first nations representatives and community officials and leaders collectively gathered for the first time in the lower mainland region to identify common issues and to develop cooperative solutions. Participants used this opportunity to talk and listen and to take time to meet their fellow neighbours, both aboriginal and non-aboriginal. Our discussions at the forum were guided by the following theme — and it's there for you — "Together our communities touch the past, hear the present and see the future, and together we seek to understand and respect our differences, identify current and common issues and develop cooperative solutions."

[1145]

           The forum involved three hosts: the Tsleil-Waututh first nation, the Lower Mainland Treaty Advisory Committee and the Lower Mainland Municipal Association. It

[ Page 347 ]

was funded by the Union of B.C. Municipalities. To foster informal and open discussion, no issue was off limits. The resulting discussion included such diverse topics as aboriginal title, capacity building, compatible community development, relationship building and reconciliation. The community forum provided a rare opportunity for participants to exchange candid views and discuss options for treaty and non-treaty approaches to issues of concern in the province's most urbanized area. Through dialogue and information sharing we were once again reminded that local governments and first nations share many important commonalities. To further strengthen our shared interests, we agreed that we again needed to set out specific, measurable objectives that we can each work towards incrementally — objectives which are defined and implemented not by Ottawa or Victoria but by our respective communities. We acknowledged that this was going to be the beginning of a long journey together as neighbours and that to make objective decisions about our collected future, we first need to have a strong relationship.

           Since this forum LMTAC has hosted a governance symposium in June of this year. This event enabled area first nations, local and senior governments to discuss specific issues related to regional and intergovernmental linkages between first nations and regional governments. Symposium participants developed a summary of considerations for a follow-up session to be held in the future. This process was initiated to create new relationships between aboriginal and non-aboriginal peoples in British Columbia. As the provincial government moves forward with the referendum, we must not forget this underlying goal when reaching out to the wider population for input.

           Treaties pose extremely complex public policy questions. As such, timely and comprehensive education of the public is crucial to building understanding and support for the treaty process and for the community-to-community relationship-building process, both pre- and post-treaty.

           The new community charter, which will replace the existing Local Government Act, will hopefully provide new opportunities for local government to assist first nations, such as promoting the development of new economic partnerships and bringing about creative solutions to shared issues. The charter also proposes that the provincial government recognize local government as an order of government, which goes, of course, to the heart of local government's primary frustration of not being at the treaty tables as a full participant.

           We are aware that the Fraser Valley Treaty Advisory Committee made a presentation to this committee yesterday. LMTAC would like to indicate our support for the key points in that presentation. I'm not going to repeat them all, but for example, we agree that the process needs increased transparency and that both senior governments could improve the treaty process through better public understanding of, and support for, their mandates. We must also ensure that all British Columbians, aboriginal and non-aboriginal, have a reasonably comparable standard of living and housing. Treaties must promote first nations self-sufficiency and economic stability. To achieve this, senior governments must make provisions for appropriate funding during the post-treaty transition period.

           At this point, I just wanted to give reference to a document that is in your binders — which, as I mentioned, is our "Considerations Paper" — that contains our first principles. In light of the Fraser Valley TAC presentation, I just wanted to add to what I have written there and point out a few of these — there are 39 of them, but I just wanted to highlight a few — that really reinforce some of the things the Fraser Valley TAC talked about and that are joint concerns to both our TACs.

           Policy No. 3 states: "Treaties should uphold the principles of the Canadian constitution and the Canadian Charter of Rights and Freedoms." Also No. 23 — I'm referencing the speaker previous to this presentation — is about protecting fish stocks: "The protection of fish stocks is a primary concern, and the rights and responsibilities of all fishers engaged in native, commercial or recreational fishing should be given due consideration." Reference No. 24: "Treaties must recognize and respect the authority and jurisdiction of federal, provincial and local governments." No. 26: "Aboriginal self-government should uphold the principles of democracy and accountability." Principle No. 27: "Treaties must uphold the principle of `no taxation without representation' for all persons residing on treaty settlement lands." I won't expand upon that. All 39 are important to us, but these are ones that were addressed in one way or another in the Fraser Valley TAC presentation. I just wanted to reiterate them and show that they were prime concerns of ours as well.

[1150]

           As I have outlined, LMTAC has a unique perspective on issues regarding the referendum process, its format and its potential outcomes. Some of these include the continuing recognition of the important role local governments play in the treaty process; the understanding that first nations and local governments will be left to live with treaties after they are signed; local government and first nations share many important commonalities and, therefore, must maintain strong relationships; recognition of the uniqueness of the urban environment; and the importance of educating the population to build support and understanding of the issues dealt with in the treaty process.

           Chairman Les and committee members, this concludes my presentation, and I would be happy to respond to any questions you may have regarding this presentation this morning.

           M. Hunter: You mentioned the issue of transparency and not knowing what's going on. Is the LMTAC aware of the entirety of the packages being developed by either the feds or the province for the Tsawwassen, Burrard, Musqueam and other bands that are negotiating in the lower mainland area? I tell you why I ask. In Nanaimo, which is my home, the city council and regional district were somewhat surprised by the land

[ Page 348 ]

selection package that was on the table in that negotiation. Is that unique, or are you suffering from the same secrecy phenomenon?

           D. Bell: In varying degrees. It's not unique. I might add that with the Nanaimo situation we were very concerned. We met with municipal and regional district representatives from the Nanaimo area. We have had meetings since with Ministers Plant and Abbott during the UBCM meeting. We specifically made reference to Nanaimo as an example of maybe a lack of appreciation of the municipal perspective. That's why I keep highlighting it throughout this presentation. I understand that the regional and municipal representatives were somewhat blindsided, particularly by the discussions that came down.

           We have come a long way in the last four to five years in our relationship, particularly with the province. Since you're here representing the province, I want to say that it has improved dramatically. One of the issues that was a concern for us was that we felt we were being treated like a third party — like a stakeholder, like the fish and game clubs, an association in British Columbia or something — when in fact we are an order of government, as the Charter will recognize, in our opinion. When the treaties are finished, we're the ones that are left to deal with them on a day-to-day basis. There is considerably more openness. I might add that we have communicated all our first principles. We invite both the federal and provincial — but we consider we're part of the provincial team — to our meetings. Very rarely do we have an item that we have to deal with in-camera, on a closed basis, from a municipal perspective, and we want to talk about it before we talk with our provincial team members.

           We've established a process of dispute resolution when we disagree. There's a hierarchical process we can go through. Is it where we would like it to be? No. Is it better than it was? Yes. Are we generally pleased with the response? Generally. Are there times when we're frustrated? Yes. I don't want to give the back of the hand to the negotiators, because I think they're in a tough position. They have been pretty good with us. They're certainly responsive to myself and the table people. We don't always agree with the provincial position. One of the challenges we have is to resolve those differences so that when they're presented at the table, we are presenting something that is a win-win for both of us — in fact, for all of us.

           V. Anderson: Both today and in our other hearings across the province we've had a number of people raise the treaty process and the relationship to aboriginal people who are living in an urban area and off reserve. Some are connected to reserves and many are not. Have you any guidelines for us in dealing with this particular area?

[1155]

           D. Bell: That's an important issue, and I made reference to our first principle No. 27, which I'll quickly read out in its entirety. It may help. I said that: "Treaties must uphold the principle of no taxation without representation for all persons residing on treaty settlement lands." That is, I presume, the area you're targeting. We say that mechanisms need to be developed to ensure that all persons who are living on treaty settlement lands and who are paying taxes or levies to the first nation have access and a voice in first nation governance systems.

           V. Anderson: I don't think you understood my question.

           D. Bell: Okay. Oh, the off-reserve, TSL issues?

           V. Anderson: The off-reserve people who are living in urban areas.

           D. Bell: Okay, that's No. 32 of our first principles. We say: "Lower mainland–area local governments have increasing aboriginal populations that are not from the traditional territories of lower mainland–area first nations, as well as aboriginal populations that will reside off future treaty settlement lands. Treaties must include mechanisms to ensure that the costs of providing programs and services to these populations do not become the responsibility of local government." That's consistent with the philosophy that the costs of treaties are not to be borne by local government. We do have a background paper which we're very happy to provide to your committee.

           V. Anderson: That would be helpful. My concern is that many of these people are not directly related to bands — within this province, even — but they are part of our community life. In the planning can you give us any suggestions on how we can relate to this group?

           D. Bell: In arriving at these 39 first principles and the considerations document that goes with it, we have some various background papers that came out of the discussions — longer than I can take the time here. Yes, we have addressed that issue.

           B. Lekstrom: A question regarding self-government and direction. Certainly that's a large issue out there right now. Just your views on the preferred model of self-government: would your preference be that it reflect a municipal style, possibly changing in the near future under the charter? Your views on that.

           D. Bell: I think the model that most municipalities and regional districts feel comfortable with is what we're familiar with — that is, local government, the style of local government we have. To that extent, we had hoped more would happen in the Sechelt example. We recognize there are areas in which first nations will have jurisdiction beyond what a municipality does, because as you know, municipalities are delegated responsibilities at this point, certainly from the province. Some of that responsibility is broken between school districts and between municipal and regional governments and the health districts. In the recent initiatives of

[ Page 349 ]

the previous government, in fact, that line between municipalities and health areas began to blur as to who had areas of responsibility and authority.

           From the discussions we've had, I know we would feel most comfortable in dealing with some form of first nations self-government that is similar to municipal government in structure. I think the proposed charter will make that more attractive to the first nations in that I see more opportunities for local government — rather than restrictive legislation, legislation that will enable us to do things. That's why I made reference to it in our presentation. I think it's an area where municipalities are going to be able to add their experience and expertise in assisting first nations in working together as neighbours in terms of joint economic and social issues, development of recreational facilities, those kinds of things.

           J. Les (Chair): Thank you very much, Don, for your presentation. Perhaps before you leave, though, you'd like to introduce your friends.

           D. Bell: I'm sorry. I should have at the very beginning. Mayor Ralph Drew is the vice-chairman of LMTAC and Kirstie Pirie is the manager of LMTAC. We've recently had some of our staff, both my staff and LMTAC's, hijacked by other levels of government. As I indicated, we're in a constantly evolving process. We've also evolved organizationally.

           J. Les (Chair): I would like to consider local government as a great training ground for other things.

           The next presenter is Sister Marina Smith. Good morning, and thank you for waiting patiently.

           M. Smith: Good morning. Committee and friends, I thank you for this opportunity to discuss the referendum question. My focus is a little different. I am coming to suggest that there not be a referendum. Having heard speakers this morning, I am even more convinced that the understanding in the public needs a lot more work before we can attempt to address such a comment.

[1200]

           I see the issue that we are addressing as how the peoples of Canada, particularly of B.C., can live together peacefully, respecting each other's differences. I am impressed that the committee before me spoke about their work in this line. Of course, we're especially concerned with the relationship between aboriginal and non-aboriginal peoples. I see this issue as an ethical issue, because at its root it's concerned with justice. If people are to live peacefully together, there must be justice. If we view it this way, it will demand that we approach it in an informed, researched and well-reasoned way with a desire to do what is right — not what is convenient or comfortable but what is right.

           I agree with the royal commission that we ask their overriding question; that is, what are the foundations of a fair and honourable relationship between the aboriginal and non-aboriginal peoples of Canada? The royal commission spent a great deal of time on this issue, and I really recommend their findings. They presented a slightly different view of self-government than the previous people mentioned. They presented a view of self-government on the level of a province, not a municipality — just as a background for what we say.

           Such a question of justice and of a fair and honourable relationship cannot be settled by a referendum. Justice cannot be determined by popular vote. Nor, actually, can you ask for little addendums to it either, because of the way we all come with such different views. No matter what the form and the content of the question, which was your mandate, a referendum is the wrong vehicle for obtaining justice. Many of the public might not be well informed. There is a distinct possibility that many voters could be guided by prejudiced feelings, misguided attitudes or unthought-out opinions. We must search for justice in a principled way.

           Just to note, our understanding of issues comes from our experience. My and others' experience with first nations people is often that they experience one first nation and then spread it to the others. I should perhaps put in where I'm coming from. At present I am a chaplain to students at the University of British Columbia. I have been a teacher of elementary students for over 25 years, and in one school where I worked, there were first nations people. I have worked a little in social needs and done some volunteer work in a non-profit society with first nations people. I do see people making generalized statements about one experience with a first nations person. I fear that a referendum will draw on that one negative experience. Prejudice is so easily built in us.

           We might wonder why, at this time in history, we need to address the issue of justice with regard to first nations. I agree with the royal commission that unless we know our history, we are apt to repeat it. The Royal Commission on Aboriginal Peoples, established in 1991, provides an answer to this question after its many public hearings on the topic. They concluded that the main policy direction, followed for more than 150 years, first by colonial and then by Canadian governments, has been wrong. If we start with that as a base and then do all our negotiations, we haven't changed anything. You have to start with the first assumption being correct. So today instead of having a relationship of co-existence, equality and justice in which there is a sharing of the lands, resources, power and dreams, we have, in fact, one of control, assimilation, intrusion and coercion.

[1205]

           Although the Constitution Act of 1982 contains section 35, already alluded to, which includes the inherent right of self-government as an aboriginal right, we have voices critical of first nations desire for control of their government. We have fears, too, of what will happen to us.

           The government of British Columbia can and must change this relationship into one of justice. It is clear what you must do. We need the political will to do it. We must be guided by the principle of justice, which includes respect, honesty and treatment of each other

[ Page 350 ]

as equals. Where we have not done that, conflict has arisen and harmonious relationships have been eroded. History has shown us that. History has also shown us how the changes in our relationship with first nations people have come about. It invites us to rethink some of our own attitudes and understandings and to allow this history to move us forward.

           My experience is that a lot of students have no understanding of how we and the first nations people met. We have had our history presented to us from our perspective. Only now are our students recognizing that the underside of history needs to be brought into the classroom. Most of the people voting at this referendum will be, as I was, a product of the public education system of this province. It's a good education, but at times we had books slanted towards the dominant society's perspective.

           How did it begin? It began when two nations came into contact on the land which would become Canada. Both the nations, remember, were existing in their own territory. The first nations were here, and the others were in Europe. They met on a land new to the people that we descend from. In 1497, when Europeans arrived in this new land, they found a land inhabited by people with their own language, laws, governance and spiritual traditions. That is not what was presented in the textbooks that I was brought up on. They were presented as wandering nomads with very little education and know-how.

           However, in order to survive in this new land, the newcomers depended on the first nations people to be able to deal with the terrain and the weather, to get food, to travel, to be trading partners and to be military allies. You can remember the number of wars where the first nations people helped the others to settle things. The two groups worked in partnership.

           The early colonial governments respected the land rights and title of the first nations people. However, that mutuality changed as more newcomers arrived and the desire for land tainted the view of first nations people, which we're living with today. When it first became necessary for the newcomers to occupy land, they'd look to what was before them. They had English common law and European international law. These directed them. These laws said that agreement must be reached between new settlers and those already occupying a land, and that the method for arriving at such an agreement would be a treaty negotiated by the leaders of the people, the two groups. Many people do not understand that process. They think the newcomers conquered the people who were here. They've had it presented as conquest and exploration, not as two groups trying to settle the rights of the land. That's how we've proceeded.

           The first nations people saw the purpose of a treaty as working out "ways of sharing lands and resources with the settlers without any loss of their own independence, but the representatives of the Crown land had come to see the treaties merely as a tool for clearing aboriginal people off desired land. The negotiators guaranteed to them provisions for as long as the sun shone and the rivers flowed." This is from the document by the royal commission. However, the government of Canada not only perpetuated the attitude of the early negotiators, but they did not keep their word regarding the provisions promised — "for as long as the sun shone and the rivers flowed." They stated that the explorers found an empty land, and they used that term, terra nullius, when these explorers arrived, and then used the statement to allow the present government of the early colonies to take control of the land.

[1210]

           We know that key to the growth and development of people is the control of lands and resources. Besides that, with first nations people there is a spiritual connection to the land of their ancestors. Yet in this climate of no negotiation, the first nations' concerns and desires were ignored, their rights flaunted. The attitude of the government towards the first nations people had changed from one of respect to one of subjugation. The Constitution Act of 1867, which assigned legal ownership of all Crown lands to the provinces, was drafted without any discussion with the first nations people. Policies of assimilation were enacted. The first nations people were moved from place to place on what was once their land, and their moves were not motivated by their good, though it was presented as a protection. They were often moved when resources were found on the land that this new population needed, which we now claim as our resources. Basic human rights were denied them, including the right to vote, which was given only in 1951.

           Another note on that. The whole notion of the reserve and of people being stuck on a little place, which has been referred to by previous speakers, was not the idea of the first nations people. It was imposed on them by the Indian Act of 1876, which said they were to eliminate economic development by prohibiting Indians to sell land, agriculture, goods or farm animals. They were never allowed to continue the economic. They were also not allowed to invest moneys they might have made, as well as not voting. Basic human rights were denied.

           These injustices occurred — Anthony Reynolds, who was chair of the royal commission, reminds us — despite the early reviews coming out of the 1763 Royal proclamation, which portrayed the aboriginal peoples as autonomous political units living under the Crown's protection while retaining their internal political authority and their territories. That was not the view taught to all of us since these first meetings.

           There have been some treaties established in British Columbia. Between 1850 and 1854 there were 14 signed in British Columbia between James Douglas, colonial governor of Vancouver Island and mainland, and the first nations people. Then B.C. abandoned this system of recognizing another nation and working with it to come to agreed-upon terms for land and its resources. Only in 1992 did B.C. again take up the treaty process, but the Royal Commission reminds us that treaties have a long and honourable history as a way of solving disputes between nations, peoples and government — despite Canada's record of violating them with the first nations.

[ Page 351 ]

           It is out of this background that we people in B.C. today need a process of redressing the wrongs of the past in order that all the peoples of B.C. and Canada can move forward into the future as partners. A desire for justice for all the peoples of B.C. should prompt the government to engage in a process of negotiation as a way of ensuring fair distribution of lands and resources and the jurisdiction over them and, through this process, to enable the first nations people to embark on a path of self-sufficiency. Justice extends to all the peoples of British Columbia. This desire should also prompt the government to take the initiative in what is their responsibility rather than to relegate to the public in the form of a referendum, a question which the referendum is not adequate to address.

[1215]

           Despite the recommendations of the royal commission and the desire of a great many people of B.C. to see justice done with the first nations people, there has been little movement towards redress. Frustrated at the persistence of a situation of injustice, the first nations people have taken their cause to court in order to force governments to recognize their rights to land and resources. These cases have affirmed that these people have legal rights to the land. For example, in one case called the Calder case the Supreme Court of Canada in 1973 ruled that aboriginal title is rooted in "the long-time occupation, possession and use" of traditional territories and as such existed at the time of original contact with Europeans, regardless of whether or not the Europeans recognized it. It is Canada's own law and court system which points the direction which Canada must take in establishing just relations with its first nations people.

           The courts are very costly and time-consuming. They are not the best way to resolve human issues that underlie claims to land and resources or questions of governance. As the royal commission pointed out, negotiated settlements in which the parties talk face to face and work out complex deals are preferable. The royal commission recognizes that it's going to take a long time and is estimating a 20-year process. That fact alone will alleviate fears of British Columbians who think that should we enter into a treaty process, they will have their houses taken away in the next year.

           The basis for a process of negotiated settlements like treaties is mutuality and trust. Although treaties had been used in Europe in Roman times, they became important in the seventeenth century to ensure peace for periods of time when countries were warring. They'd been used by first nations people to establish peace and share the land and resources. The early treaties — and perhaps today — in Canada between the newcomers and the first nations were a way of recognizing each other's independence and sovereignty and a mark of mutual respect. A commemoration by the Mohawk of a treaty in 1613 between them and the Dutch is an example of this respect. It concludes with these words: "We shall each travel the river together, side by side, but in our own boat. Neither of us will steer the other's vessel." These words can provide an attitude of respect for discussions between the government and the leaders of the first nations peoples today.

           The royal commission concluded its study — and I would like to conclude with it — with practical recommendations for implementing a process between the government and the first nations people. They recognized that Canada can no longer afford the status quo. They proposed a comprehensive agenda for change rather a piecemeal one or, as one person mentioned, a one-to-one basis. They would like an overview rather than taking each thing as it comes. They recognized that the core of their work was to "seek a better balance of political and economic power between aboriginal and other Canadian governments." They offered ideas for new structures of government, new strategies for economic development, new kinds of social programs in order to bring about change in human lives. They viewed their task and the task of us in British Columbia as to ensure that aboriginal children grow up knowing that they matter, that they are precious human beings deserving love and respect and that they hold the keys to a future bright with possibilities in a society of equals.

           I believe it is impossible to achieve these goals through a referendum, which is more likely to increase polarization than it is to further reconciliation. The royal commission spent many hours labouring over this issue, and many taxpayers' dollars went to bring us their deliberations. I urge the government of B.C. to take their recommendations to heart and embark on a negotiation process with first nations people. A referendum will cost the taxpayer a great deal of money, and it will not achieve the desired goal.

           J. Les (Chair): Are there any questions from committee members?

[1220]

           V. Anderson: Thank you for coming and presenting your well-thought-out and heartfelt response. There is a treaty process going on at the present time. What is your recommendation about the ongoing nature of that process?

           M. Smith: My understanding was that the present B.C. government decided to halt it until the referendum. My recommendation is to continue it, not to wait until the public give views about whatever they think the question is going to be. The question has not been formulated, as I understand it. It is going to be very difficult to formulate a question which will see that the treaty process proceeds with justice. I guess I have a problem with the method of choosing to halt the process until the public is consulted in this way.

           V. Anderson: Perhaps I could give my own little context. I was the opposition critic of the government in 1992 when the treaty process was there and spoke in favour of it on behalf of the opposition at that time, now government. We gave it full, complete endorsement. We have never backed away from that commitment. We are fully committed to the treaty process.

[ Page 352 ]

           Our present circumstance is that the process — and we're hearing from persons on all sides of the process and from the aboriginal people as well — has not been working as well as it might. We've been asked to come to the people and ask how the process might work better, what the principles are that people would like to have as part of the process in order to make it work better. If you have some suggestions as to how the process would work better — what principles would improve it — that's really what we're here to hear: how the process could work better and fully understand our relationships in going forth on that process.

           M. Smith: Yes, I agree that the process needs to go forward with honesty and mutuality and a desire for justice. I do not think that the public can answer a question, no matter how well it's worded, that can give you a direction. I think that to go ahead at this time with a referendum is to actually put a spoke in the wheel of the progress.

           My experience with people is that they have built a great deal of feeling around first nations people. They don't know their history. They know only the history of our dominant culture. They presume that we should give, as a privilege to the first nations people, whatever we give them. Rather than that, we should enter the negotiating table as equals.

           I think someone mentioned education. I think that's a must. Whatever way you go, all of us need to be educated further on our history and on what has been done and what will be the result of implementing the royal commission's recommendations, because people fear too much. Education of the first nations was mentioned. I have been involved a little bit in education, and there are many models you could have. I think the underlying principle in Canada is that education is the right of the parents. I think we should proceed from that point too.

           V. Anderson: If I'm hearing you right, you would suggest that a process of education among the people of the province, aboriginal and non-aboriginal alike, is an important principle that we should have in mind.

           M. Smith: Exactly — period. Whether you have a referendum or not, definitely we need education.

           V. Anderson: Okay. Thank you.

           J. Les (Chair): Thank you very much. I'm going to have to stop you there. We're running slightly behind at this point. Thank you again for coming and presenting your point of view.

           The next presenter is Colin Stark.

[1225]

           C. Stark: Good afternoon. Thank you for this opportunity to make a presentation to you. My name is Colin Stark. I'm with an organization called Canadians for Direct Democracy, which is non-partisan and non-profit. It was formed about five years ago to advocate direct democracy, which can be briefly defined as the right of citizens to hold referenda on any issue.

           I've been in Canada for 41 years, a citizen for 35 years and in B.C. for 23 years. I'm now retired. I was an engineer and a manufacturing manager for over 30 years, and for the past five years I've followed government's issues at all levels very closely.

           I have one single and apparently simple point to make to you today; namely, this referendum should not proceed before the basic policies to enable citizen-initiated referenda are established. Let me assure you that this seemingly simple statement is actually a very complex subject which I cannot possibly argue in the ten to 15 minutes that we have here today, so I will be brief. My written submission contains a summary of this spoken presentation plus two extracts from our website. One is a sheet entitled "An Executive Summary of Direct Democracy," and another is entitled "Frequently Asked Questions" about direct democracy. These are attached. All of these are basic to my argument and could perhaps be read in 15 minutes.

           In addition, within these sheets are references to various pages of our Canadians for Direct Democracy website, including the ten-page report of the task force on direct democracy to the district of North Vancouver. Coincidentally, Don Bell has just appeared before you. Also, there is the classic 14-page article by Brian Beadham of the London Economist in December 1996. Also on that website are a bibliography and a page of links to other websites worldwide, and all of this could be surveyed in several hours or in several days, depending on how deeply you wish to delve. In addition, I want to bring to your attention a very excellent B.C. book, Citizens' Hall: Making Local Democracy Work, by André Carrel, published in 2001.

           I have one single point to make to you today. This referendum should not proceed before the basic policies to enable citizen-initiated referenda are established. The pre-election Liberal platform contained two planks concerning referenda. One is a subject of this committee's deliberations today. The other, which I believe should be settled before this committee completes its work, is — and I quote from the Liberal Party website and from your platform — "Establish workable initiative legislation to make it feasible for British Columbians to call for a referendum on issues of provincewide concern that fall within the provincial government's jurisdiction." This is a very laudable objective. Indeed, in my opinion this is the most important single plank in the Liberal platform, and if properly done, this reform would go a long way toward rectifying the inadequate system that currently governs us.

           Incidentally, can I pause and ask if this committee knows when that process will actually start?

           J. Les (Chair): Which process is that?

           C. Stark: The process I've just quoted, establishing workable initiative legislation to make it feasible for….

           J. Les (Chair): I cannot answer that question today.

[ Page 353 ]

           C. Stark: So it hasn't been set in process yet.

           J. Les (Chair): If it has, I am unaware of that at this point.

           C. Stark: I am too and that is why I ask.

           In the history of federal Canada referenda have been used sparingly. I believe it's only on three occasions that it's been used in the federal government, and on each it's been used as a tool to try to manipulate public opinion. The Charlottetown referendum is a classic example of this. One book in our bibliography is devoted totally to the Charlottetown referendum, which, of course, failed.

           Provincial referenda are rare, with the exception of the province of Quebec, where again in recent years the government has used sovereignty referenda as a tool to try to manipulate public opinion, again without success. Perhaps the only genuine provincial referendum held in recent years was in 1991, when 83 percent of B.C. citizens voted in favour of enabling citizen-initiated referenda as a process in the referendum that was part of the B.C. election. The last NDP government delayed legislation until 1995, when they introduced an act that was carefully designed to make referenda initiated by the citizens virtually impossible. Your platform has promised to rectify that.

[1230]

           So the local referenda that we do hold are all council initiated, all mandated by law, and while they're frequent, they cannot be initiated by citizens, except in Rossland, as detailed by Carrel in his book. Carrel further advises in chapter 3 of his book, beginning on page 33, not to introduce referenda to the public on explosive issues, such as was unsuccessfully done in Pitt Meadows a couple of years ago and as you may be doing here.

           Though we the citizens still do not have the right to hold referenda on any issue, which leads to some serious and numerous consequences as detailed in the attached FAQ sheets, frequently asked questions, they mostly arise from the fact that all levels of governments are not accountable to the citizenry except on election day. Therefore, no government has a clear mandate on any single issue, no matter how important, whether or not the issue was part of the government's election platform. Nor can the citizenry endorse or veto any government measure. This is bad for the government, bad for the citizenry and bad for democracy — hence, the oxymoron "B.C. has a democratic dictatorship."

           I believe that what we need right now is a public inquiry such as this one on reform of the governance system of the province, including but not limited to a system of citizen-initiated referenda. Unfortunately, I believe this committee is initiating an extensive public debate about a polarized topic on which citizenry already hold strong opinions, and this will only serve to widen partisan splits, create new rifts and, most importantly, bring the whole topic of introducing citizen-initiated referenda into disrepute.

           In his excellent 1991 book, Coming to Public Judgement, Daniel Yankelovitch, a U.S. pollster, points to the ten years or more that it took the United States to annul the effects of the Vietnam War, primarily because the government propagandized its own people. This committee may be initiating a similar divisive issue. The chronic misuse of referenda is the recent Doris Day caper. Over 1,000,000 people have registered their vote in this mock This Hour Has 22 Minutes poll, perhaps indicating how frustrated citizens are with political manoeuvrings, more than anything else.

           In closing, let me just reiterate that I'm submitting in writing the text of what I just said, together with two additional pages. I recommend several reports and references from our website, and I recommend this book by André Carrel. I've read many books on referenda. This is one of the best, to my mind. I assert that this referendum should not proceed before the basic policies to enable citizen-initiated referenda are established.

           J. Les (Chair): Any questions? Thank you very much, Colin.

           Our next presenter — and the final one before we have a quick break for lunch — will be John Cummins, MP for Delta.

           J. Cummins: Thank you very much, Mr. Chairman and members of the committee, for allowing me the privilege to address you this morning. I know it's late in the day, and I'm going to get directly to the statement I have. I can assure you it'll take me about ten minutes. I'll read quickly so I don't hold you back from your lunch.

           Your job, no less than that of every British Columbian, is to see the referendum process as a gift — a unique opportunity to shape the province we want in the future. You have the challenge of balancing the economic, social and cultural needs of all British Columbians as you advise on the drafting of the referendum question. You have the good fortune to have the opportunity to avoid the pitfalls of the fellow referendums in Quebec, where successive separatist governments sought to write vague questions that attempted to hide their real intentions — that of establishing a separate, sovereign nation. Everyone agrees that the Quebec referendum questions lacked clarity and thus would have failed to give the government of Quebec the authority to separate even if they had won the referendum.

           The Tsawwassen band in my riding is engaged in the treaty negotiations process with the federal and provincial governments. Both levels of government have responded to the Tsawwassen treaty proposal, offering to turn over land and resources to the band thereby creating some sort of special Nisga'a-like government in my riding. The 1990 treaty proposal made by Chief Kim Baird stated: "Today we seek a fair and just treaty which will give us the land, resources, self-government and cash settlement to which we are legally entitled and which we need to build a positive, viable and sustainable social, economic and cultural future for present and future generations of the Tsawwassen people." The chief then went on to explain why

[ Page 354 ]

she believed there was a need to take these special measures to provide for the economic, social and cultural futures of her constituents for this generation and for future generations.

[1235]

           Chief Baird listed the following statistics: 38 percent of members surveyed are unemployed compared to an unemployment rate of 7.4 percent in Delta, another 19 percent of members surveyed have only part-time or seasonal work, and only 5 percent speak some of the traditional language. There's an immediate requirement for affordable housing for residents and very little available land on which to build that housing. Almost 60 percent of the Tsawwassen people are under 24 years of age, and 53 percent of members have not graduated from high school.

           Now, the Department of Indian Affairs tells us that 154 band members live on the reserve. According to census data, 25 percent of the residents have non-university education in addition to high school, and 28 percent have had university training. In the fiscal year 2000-01 the band received nearly $3.2 million from Indian Affairs plus substantial contributions from other departments for medical care, economic development, policing and other matters. You can see appendix 1 for the information.

           What the chief did not say in listing the band's needs was that the band had sold part of its land for Tsawwassen housing development several decades ago. Next the band set aside a considerable tract of land under long-term lease for an additional housing development. Finally, several years ago, it undertook a condo development on its land near the beach. All these developments were for non-aboriginals.

           The band believes that anyone who claims some relationship to the band should live, go to work and work on band land. In other words, for every conceivable need band members should be able to find that need on band land by the band. This demand is made when most people on the lower mainland drive great distances from where they may live to go to work or school, yet the band members declare they have a constitutional right to all these conveniences within a few blocks of where they live.

           Now, you're being asked to advise the government of British Columbia on a set of questions that will allow the people of British Columbia to define the mandate of the government in treaty negotiations and on the sort of treaties it would enter into, bearing in mind that the treaties will have a dramatic effect on the nature and structure of this province for the foreseeable future.

           The treaties will, if they continue in the mould of the Nisga'a treaty, create 50 or more autonomous states within what up to now has been a single province. So far only aboriginal communities have been able to vote in the referendum in response to negotiated treaty settlements, the wider community having been shut out. The government of British Columbia has realized that in the long term such an exclusion of the people of British Columbia from the treaty process was unsustainable.

           The difficult problem you have been given is to come up with a series of questions that would create a once-and-for-all referendum. That is an incredibly difficult task. Unless the referendum questions provide a clear mandate for future treaty negotiations, the demand by the general public to have the opportunity to vote on each and every treaty that is entered into will not go away but will increase. Therefore, the questions must get to the heart of what the treaty process has been doing: the creation of aboriginal communities with sophisticated powers equivalent to that of a province or, in some cases, the federal government. These new political entities would have their own courts, laws, police forces, etc., yet only band members would be able to vote for these new governments.

           The members of these new community states would have special, and sometimes exclusive, right to trade in or harvest virtually every conceivable natural resource, to the exclusion of the general public. The people of British Columbia are really being asked to advise their government on what sort of province they want not just for tomorrow but for themselves, their children and their children's children for all time.

           In the past we in the west have often questioned if the people of Quebec were being given a fair question on the referendum as to whether they wished to stay in Canada. It was said with justification, I think, that the separatist governments were not really putting the facts before their people in a properly constructed question. We have often said that the referendums were not really legitimate, because the questions did not really get to the bottom of what was intended — a separate state and what, if any, relations were to exist with Canada.

           You have that task here in the province. We know what the bands are demanding from the many treaty proposals on the table: separate community states, special rights extending only to the members of a particular racial or ethnic group, special laws and courts for the group and the disenfranchisement of non-citizens of this community state. That is the reality. If your questions do not touch on these key issues, the referendum will have failed. It will have been a farce. You are in fact citing the ground rules for the future of our province and your communities.

[1240]

           Underlying the whole claims process is the belief that aboriginals can only solve their community problems if they disengage from the wider economic and social life of the province. Will the education levels of the Tsawwassen band members change if they never have to leave band land? Will the need for social assistance change? Will the income levels change? Will the number of people having gainful employment change? In a nutshell, will their lot be better? Just as importantly, what sort of province will this leave for the general population?

           There is an even more fundamental proposition that underlies the whole treaty process. There is a claim that aboriginals have been systematically excluded from the economic life of this province. Surely this must be true. How else could we explain the lower

[ Page 355 ]

living standards, lower levels of employment and lower levels of education?

           The referendum question must take us to a treaty process that is good for aboriginals and good for the whole province, a treaty process that will address education, employment and whatever is at the root of the lower levels of social and economic development in aboriginal communities — the actual roadblocks to development.

           If you look at the real history of this province — with all its warts — you will, I believe, be taken aback by the economic and social potential that aboriginal people exhibited from the time of major settlement and economic development until the federal government, through the Department of Indian Affairs, created a comprehensive cradle-to-grave system in aboriginal communities, a system of special benefits and rights that has sapped the aboriginal community of its life. Throughout the extensive literature on B.C. aboriginal societies one is hard pressed to discover the facts — the reality that from the last quarter of the nineteenth century and on, aboriginal peoples everywhere in the province were working in the major industries of that period.

           James McDonald in The Images of the Nineteenth Century Economy of the Tsimshian observed: "I hope the evidence presented here will help correct the commonly held view that Indians were not part of the modern economic development which began in the nineteenth century… On the contrary, Indians were often critical to the success of various industries." He goes on: "The date I have currently examined suggests a considerable similarity between Tsimshian and immigrant workers. Both combined hunting, fishing and trapping with a seasonal wage employment. In the nineteenth century none of these elements could support a person: nor could a strictly 'traditional' economic system or a 'traditional' industrial system."

           James Burrows in A Much-Needed Class of Labour: The Economy and Income of the Southern Interior Plateau Indians makes a similar discovery about the incredible capacity of interior aboriginals to adapt to the new opportunities. He discusses the wide range of aboriginal employment on ranches and farms, as woodworkers and as many-faceted casual labour.

           Aboriginal commercial fishermen were widely using the plank cannery boats in the 1890s and were among the first to acquire and install gas engines shortly after the turn of the century. Indian fishermen were familiar with the changing fisheries regulations, the changeable fish rates, quotas, stipulations and company store prices of specific canneries well before 1900. A considerable proportion of the aboriginal commercial fishermen did not fish in their ancestral territories. They fished, especially in the years before World War I, in relatively close proximity to the canneries. They transported themselves and members of their families hundreds of miles up and down the coast to work in canneries, hopyards, sawmills and to visit the bright lights of Victoria and Seattle.

           According to Rolf Knight in Indians at Work: An Informal History of Native Labour in British Columbia, what is less frequently known is that there were Indian seamen working on coastal sailing ships as well as on the decks and in the engine rooms of the early steamships. Indian deck crews also helped the sternwheelers that plied the interior lakes and rivers of the province from the 1860s to the 1920s. Knight goes on to point out that "Indian-owned schooners began to appear in the early 1870s, and some of them were constructed by Indian boat builders."

           Aboriginals were also adept at the latest methods in farming. Knight observed that "bands around Cowichan and in the Fraser Valley, as well as some in the interior, had established farms on which they raised livestock, cereals, market produce, fruit and fodder. By the 1890s Indian farms in some locales were comparable to white-owned farms in those regions, with a similar complement of barns, tools and livestock…occasionally including even the huge steam threshers which were the marvels of modernity."

[1245]

           Knight finds that "from 1881 until World War I Indians worked in the construction of virtually every railway in British Columbia. They worked as construction labourers and sometimes took up subcontracts for grading and clearing rights-of-way." Knight points out that aboriginals were in the forefront of unions and virtually every social and economic trend and movement up to the end of the first third of the last century.

           What happened? One thing we know for sure. A mood developed in the middle part of the last century that aboriginals needed protecting, needed special assistance and that they could not and should not be asked to face the hardships and rigours of the rough-and-tumble industrial society that B.C. was becoming. Knight put it this way: "Although Indian people took part in the general industrial development of the province, it is also true that they were subject to special restrictions laid down by a series of 'native laws' implemented by both the provincial and federal governments." "Such laws," he says, "appear to have affected the economies of independent Indian producers more severely than Indian wage workers."

           Now, oddly, it is not simply Indian agents who are demanding special status for their dependents. It is now aboriginal leaders themselves and some members of the wider community. There was a time in B.C. when aboriginals were at the centre of virtually every social and economic activity in the province as full partners, not as members of a special rights class. The challenge for you as a committee — who, more than any other committee of the Legislature, has the future of B.C. in your hands — is to allow aboriginals to once again take their place at the forefront of the life of this province.

           Will you do it for the Tsawwassen and the dozens of other bands by building walls, or will you do it by opening the gates? Are you going to construct questions that will give the government a mandate to enter into negotiations to build walled communities or to build bridges to the future? The choice is yours. The future of B.C. is in your hands.

[ Page 356 ]

           I ask you not to envision treaty negotiations that would create further barriers but ones that would let aboriginals back into the economic life of this province not as special cases but as full participants. The aboriginal people of this province have shown themselves to have an incredible potential to participate in every field of economic endeavour. Don't freeze them in time. Let your referendums give the governments a mandate to free them to achieve success wherever they find it.

           I have mulled over the sort of questions that would empower the government to engage in the kind of negotiations that would equally respect all our citizens. You might consider the following rough suggestions.

           Question: should the fundamental overriding objective of treaty settlements in British Columbia be equal rights and responsibilities for all B.C. residents?

           Question: should all governments in British Columbia consist of persons elected without regard to their race or ethnic origin by voters eligible to vote, no matter what their race or ethnicity? If not, would these aboriginal governments have (1) municipal authority, (2) provincial authority, (3) federal authority or (4) all of the above?

           Question: should the objective of the treaty settlements be that aboriginal Canadians engage in commercial activities under the same rules and regulations that govern all other Canadians?

           Question: should aboriginal Canadians still enjoy the full protection of the Canadian Charter of Rights and Freedoms, despite the operation of section 25, upon signing a treaty settlement? As you know, section 25 of the Canadian Charter of Rights and Freedoms strips aboriginal people of their charter protection whenever their rights come into conflict with the aboriginal governments created by treaty.

           Question: should cash be used as a principal means of settling treaties in British Columbia? Should the water, land and other resources in British Columbia continue to be held in trust by the Crown for the benefit of all British Columbians, or should treaties include massive resource transfers? If the principal means of settlement is cash, all Canadians will share the cost, and B.C.'s resource base will be reserved for future generations no matter what their race.

           Question: should aboriginal Canadians have an opportunity to decide whether treaty benefits go to individuals or new aboriginal governments? Who is to benefit: the individual aboriginal or new aboriginal governments?

           Question: should aboriginal Canadians pay the same taxes and royalties and only be eligible for the same government programs as any other similarly situated Canadian?

           In conclusion, I would ask you to remember the social and economic problems identified by the Tsawwassen chief in the demands for land, money and exclusive access to marine resources. In addition, I would ask you to remember the economic and social successes of aboriginals in this province before it was decided they needed special assistance and protection. I would ask you to consider referendum questions that will accurately identify what is now in the treaty negotiation process so that the public can decide if such treaties negotiated behind closed doors will address the real problems faced by aboriginals and the sort of province this will be after treaties are put in place forever.

[1250]

           I ask you to do this so that British Columbians will have a valid referendum that gives a clear mandate to the government. British Columbians deserve a clear question so that they can give a clear answer. If not, nothing will have been settled except the demand to have a referendum on every treaty before it is ratified.

           Thank you very much, Mr. Chairman.

           J. Les (Chair): Thank you. Any questions of Mr. Cummins?

           M. Hunter: Thank you, John. I can't resist the challenge of asking you a question in a legislative committee since you've had the opportunity to do the same to me. Thank you for a very thorough, thoughtful presentation, as usual.

           We've heard a fair amount of testimony over the last days that suggests the approach of interim measures. I know that term has some baggage around it. I guess a lot of people are saying that the big bang theory, where you negotiate a deal, like in the example of Nisga'a, takes too long, ruins people's lives and burdens the economic development of the province. We should get on with doing practical, on-the-ground measures that can have both aboriginal and non-aboriginal people understand where the ground rules might be. We should leave some of the big-picture stuff — for example, taxation and governance — and let's deal with stuff that ordinary individuals and businesses understand. Given your description of the Tsawwassen negotiations and the position of the band, is that a legitimate approach to treaty negotiations in your view?

           J. Cummins: I think there's a problem with the interim measures as they've been practised to this point. Of course, as you well know, in the fishing industry we've been subjected to this notion of interim measures really since 1992, with the introduction of the AFS and the pilot sales programs on the Fraser River. I think that what interim measures have tended to do is to address a problem that the government seemed to be faced with immediately, and although they were temporary responses, they've come to be viewed as sort of the benchmark, and whatever comes out of the treaty process can't come in underneath that. I think that may be especially true with the fishery, and it's going to be very difficult, yet I think essential, to turn the clock back on these fisheries arrangements.

           What we really need to do is establish this set of principles, and what those principles are can well come out of the referendum if the questions are put properly to the public.

           J. Les (Chair): Thanks, John. Any further questions? I suspect we're just getting hungry, John. Thank you

[ Page 357 ]

for coming. We appreciated hearing from the federal perspective as well.

           J. Cummins: Well, I very much appreciate the opportunity. I wish you all the best in your deliberations. It's a very difficult task you have. Thank you.

           J. Les (Chair): Good. Thanks again. We are now going to break for lunch. We will recess until 1:30 p.m.

           The committee recessed from 12:53 p.m. to 1:37 p.m.

               [J. Les in the chair.]

           J. Les (Chair): Our first presenter this afternoon is Ron Gamble. Good afternoon.

           R. Gamble: Good afternoon, sir. Mr. Chairman, committee members, on behalf of the Reform Party of British Columbia I thank you for the opportunity to speak regarding the principles that should guide the B.C. approach to treaty negotiations and to what we believe should be a referendum question.

           British Columbians have twice had the opportunity to partake in the referendum process. In 1991 they voted on recall, an initiative which was supported by over 80 percent of the voters. In 1992 they voted on the Charlottetown accord, an accord that, although heavily supported by big business, media and the politicians, was publicly rejected by the people, as it did not reflect fairness or equality and took away the democratic principles on which Canada was founded — that everyone should be equal under law. I might add that the majority of Indians living on reserves also voted no.

           The Nisga'a agreement has now become a back door, by the politicians, to the rejection of the Charlottetown accord. This certainly will not resolve the conditions regarding the way the Indian people and other British Columbians live together. It will harm many people, including the Indian people.

[1340]

           The federal government, through its Department of Indian Affairs, has largely been responsible for the demise of the Indian people and should be held accountable for the restoration of recognizing the Indian people as Canadians. The Indian people are no more an indigenous people than any other Canadian who has been born upon this land. Isn't it time we lived together equally as Canadians?

           We have a federal and a provincial government. The people do not want nor need a third government. As to one of the principle questions that should be asked, "Should the Indian people who live in British Columbia be accountable to the same governments as are other British Columbians?" I believe the response to that question would be an overwhelming yes. British Columbians, along with the majority of the Indian people, will certainly reject anything less.

           Finally, all citizens of this province should have a referendum on the finished document.

           Thank you for permitting me the time to present this submission.

           J. Les (Chair): Any questions of Mr. Gamble?

           May I perhaps ask one for clarification? When you suggest that there should be a referendum on the finished document, which document do you refer to?

           R. Gamble: Whatever the finished document is, such as the Charlottetown accord. People had an opportunity to go through the document and debate the pros and cons of the document. You can't expect the people to vote on something they haven't seen. The Charlottetown accord gave the opportunity for a good debate, which we did not get from the previous government. Here's an opportunity now for this new government to give the people an opportunity and advise them as to what is in the document.

           J. Les (Chair): Which document are you referring to?

           R. Gamble: Whatever final document the government comes up with that the people are going to be asked to accept.

           D. MacKay: I just have to follow up on that. Are you talking about the final treaty or any treaties that flow from this referendum? Is that what you're referring to when you say the finished document?

           R. Gamble: I understand — and correct me if I'm wrong — there is a template that is going to be put forward.

           J. Les (Chair): I should perhaps correct you there, if I might. What this committee has been asked to do is to frame questions that should be asked in a one-time provincewide referendum on the principles that should guide the treaty-making process.

           R. Gamble: I understand that, and that is why I have presented the question. I have also indicated that it would be nice to have the people look at the final document as opposed to just asking for the question.

           J. Les (Chair): I'm not sure that we're quite addressing the same thing there. I'm not sure that the template you referred to is part of our deliberations. As a matter of fact, I would suggest it is not.

           R. Gamble: I understand that, and that's why I have not alluded to this at all. I've only alluded to the question. This is just one question.

           J. Les (Chair): At this point there is no template that guides the treaty-making process in British Columbia. It has been alleged in the past that perhaps the Nisga'a agreement might be a template. Some have rejected that out of hand. We are not proposing at this time that that is a template. We are simply investigating what should be the questions that we would ask that would

[ Page 358 ]

help British Columbians tell us what the guiding principles should be for the treaty-making process.

           Any further questions?

           Is Bill Otway here from the B.C. Wildlife Federation?

           W. Otway: My name is Bill Otway, and I'm appearing today on behalf of the B.C. Wildlife Federation as the chairman of their native affairs committee. Our federation thanks you for the opportunity to appear before you today and to provide you with some thoughts and concerns of our 30,000 members. We wish also to congratulate the government for taking the time and trouble to review the treaty issue as a whole and allow some real input from the community at large.

           We need to make it clear at the outset that the membership of the Wildlife Federation supports fully a fair and equitable settlement of native land claims in British Columbia. Government should, however, keep in the forefront of these negotiations that fair and equitable must apply to all parties.

[1345]

           Our federation has been involved in this process since its inception, even prior to the Nisga'a treaty negotiations. From day one of our involvement we made clear the first move that we saw as necessary was an assessment of the probable end result of treaty settlements for fish and wildlife resources in this province given the then tabled offer. In short, we felt it was critical to know what the final allocation to natives was likely to be, what the total resources available were and what would be left, if anything, for other Canadians. There is much talk about aboriginal rights, but we find little or no talk or consideration for the rights of the other Canadians in this process.

           We do not dispute that section 35 of the Canadian constitution exists and that it establishes that aboriginal Canadians have rights different and in excess of those held by other Canadians. We also recognize the Supreme Court of Canada judgments in Sparrow, Gladstone, Van der Peet, Nikal, NTC Smokehouse, Delgamuukw and other cases.

           That said, there are also rights held by other Canadians, in fact, held in concert with aboriginal Canadians — rights that flow from the Magna Carta, the Canadian constitution, and that have been recognized and affirmed in the various Supreme Court of Canada judgments. Most of these judgments not only recognize the rights of all Canadians but caution that implementation of section 35 rights infringe on the rights of all Canadians and such infringement must be tempered in light of this fact. The Supreme Court of Canada has also made it clear that section 35 rights are not absolute.

           Frankly, Mr. Chairman and committee members, we do not see these factors being considered, either by the people doing the negotiating on our behalf or by the people giving them their negotiating instructions. While the current treaty process is improved over that which took place during Nisga'a, it is still far from being a truly meaningful process. It is still little more than an information-passing process. Public rights and resources are being bargained away, and the third-party participants in the process are usually simply informed of the details at the eleventh hour.

           The comments by Mayor Bell earlier today make this clear. We are looked on as simply an addendum. We are citizens. We are part of this province. We deserve consideration. Currently there is mistrust on all sides. In our view, a more open and inclusive process would eliminate or greatly reduce this and make for a more harmonious and productive process. We think there should be a process where the regional advisory committees or local advisory committees should have some sign-off on the offers being put forward. It needs to be recognized that it is their resources and future that are being bargained for here, but it seems to us patently unfair that they have no real say in the final result.

           While the concerns of our members cover the broad spectrum of all concerns for all citizens, our interests are primarily focused on natural resources: fish, wildlife, water and land. We are concerned that allocations of fish and wildlife are being made on the basis of what the band requests and claims they have been taking in recent times. There is no assessment of what these amounts mean in relation to the size of the population of the band or the fact that in the case of salmon, a major underground black market commercial fishery has evolved over the years.

           A compounding factor is that negotiations for fish and wildlife are being conducted in isolation of each other, fish from wildlife. In fact, within each category the species negotiated is isolated. The end result is that the left hand does not know what the right hand is doing, and no one is tabulating the total and assessing the rightfulness of it. Quite frankly, we see no rational thinking going into these offers, but we believe the situation would change if the public had meaningful and effective input into the process.

           We must express our concern over the current thrust of government to establish separate priorities and rules for the aboriginal and non-aboriginal communities in the commercial harvest. We have all seen the undesirability of this management structure under the pilot sales program in fisheries. We now have the federal government proposing that in the treaty process they will negotiate separate and special commercial fisheries for aboriginals under harvest agreements. The federal representatives claim, as they did with pilot sales, that these harvest agreements will operate in concert with the regular commercial fishery and have no higher or different priority. The question then begs itself: why create a separate allocation and definition and set of rules under the harvest agreement if such is the case?

[1350]

           We also fear the impact of the special policies and other commercial resource harvest activities carried out by aboriginals after treaties. For example, we are well aware that in a number of the negotiations the bands have expressed interest in acquiring guide-outfitting territories as part of their treaty settlement.

[ Page 359 ]

It is important to our members and, we would submit, to the public at large that any such commercial allocation and operation function under the same rules as all other similar commercial operations. We also believe it is important that the overall management and control of these resources for all users remain with an independent government agency, regardless of whether or not they are being used for food, social, ceremonial, recreational or commercial.

           In light of the lack of progress, currently there is a great deal of talk about settling treaties on an incremental basis. We have to say that while this action may sound attractive initially, the end result will most likely be far from that. In our view, a far more productive process and incentive would be to set a time line for the settlement of treaties.

           We are also concerned over the manner in which water is being handled in the treaty process. We see new rights being created here and the actual transfer of ownership of water. Our laws currently allocate the use of water to specific individuals or corporations, but the basic ownership of the water remains with the Crown. We wonder why this situation should be different in the case of water with the settlement of treaties.

           A final matter came to my attention yesterday and gives me and our federation some cause for concern. The Kamloops Daily News is quoting Mr. Eric Denhoff, federal chief negotiator in the treaty process, as saying: "Giving first nations a share of logging and mining revenues from a large land base is the biggest single thing that would speed treaty talks." Further: "Natives would have a sense they're sharing in the benefits of the whole territory for all time to come." Beyond some coal deposits in the southeast portion of our province, I am not aware of any mineral or forest resources under federal control in this province. It begs the question: what right does the government have to bargain away our provincial resources? In his speech to cabinet in October, Minister Plant spoke of the problem with treaties and the creation of high expectations in the treaty process. Apparently neither Mr. Denhoff nor the federal government were listening.

           We thank you again for providing this opportunity and trust this submission will be of some help in your deliberations. We're aware that three of our former chairmen of the native affairs committee — Mr. Dieter Wagner, Mr. Bill Wimpney and Mr. Don Robinson — have either made presentations or will be doing so shortly. We commend their efforts to you and advise of our support.

           In closing, we would provide a final quote from Minister Plant as to the move forward in the treaty process in a constructive and progressive manner. He said: "We get there by giving the people in British Columbia, for the first time, a direct say in what they want treaty-making to achieve for them." We say amen to that.

           Thank you, Mr. Chairman and members. We have attached a list of proposed questions which are throughout our main brief.

           G. Trumper: Just so I can get back to it, you are not in favour of settling treaties on an incremental basis? Could you sort of outline your thoughts on that?

           W. Otway: It's attractive. You're going to get the easy, most attractive ones done first — primarily fish, wildlife and forestry. The point is, as we see it, there will never be finality and there will never be certainty. What have we then to negotiate for the rest of whatever is left in the treaty process? What have we to deal with if we have already given up what the most attractive resources are? We believe it's necessary to have finality, to have certainty so that we and our children and our children's children can move on to the future in concert with our native brothers — that it be settled, and settled once and for all, and everybody knows where they stand.

[1355]

           M. Hunter: I haven't had a chance to read through your questions. It seems to me that one of the themes of your presentation is — I don't want to put words in your mouth — an undermining of the rights of non-aboriginal Canadians, particularly by the federal government, and some of the approaches they've taken with respect to fish and wildlife and now water. Do any of your questions go to that fundamental concern?

           W. Otway: I think so. I hope so.

           M. Hunter: Could you just point me to one that does?

           W. Otway: I guess it's the final question re the water resources remaining in the ownership of all Canadians, the fish and wildlife allocation, historical species and the rights of Canadians. Should the public be more involved, I think, covers the impact on our rights. If we have some real input into this final settlement, then we understand what is happening to our rights, and we're party to the infringement upon our rights. There is no question there will be, and that's accepted and understood.

           M. Hunter: Okay. Thank you.

           J. Les (Chair): Anyone else? Thank you very much, Bill.

           W. Otway: Thank you, Mr. Chairman.

           J. Les (Chair): The next presenter is Susan Lindenberger.

           S. Lindenberger: Hon. Chairman, members of the committee, I thank you for allowing an ordinary citizen to appear before you. The following are my personal views on ten principles that should guide treaty negotiations in B.C.

           Principle 1. If hearings are to be fair and democratic, they must be open and broad based. That means all British Columbians need to have heard about these

[ Page 360 ]

meetings. They need to have been widely advertised, not tucked away on page 9 of section D with one week lead time. Not all of us are on line or are glued to our TVs. If hearings are to be broad based, they need to be physically accessible to as many sections of B.C. as possible. The lower mainland has the largest population concentration, yet there are only two hearings scheduled for the mainland, here and in Chilliwack — unless that has been changed. What about people in Richmond, Delta and Surrey?

           Principle 2. To be a fair referendum, those voting must be informed about the issues and the implications of their votes. That means an immense amount of education needs to be done, especially among the non-aboriginal population. How many of us know about the Royal Proclamation of 1763 or the Douglas treaties or Lord Dufferin's position on extinguishment or section 35 of the Indian Act? How many of us are even aware of promises made in legal agreements to the first nations in those historic documents? Historic promises are the basis of all contracts we make today, but how many British Columbians feel bound by promises made by our ancestors? We sign a contract for our own home, because we feel we can trust what that paper stands for — that its worth will not run out in a few years — yet we want to ignore promises made a century or a decade ago.

           Our elected representatives are supposed to inform themselves about the background and issues and implications of the decisions they make on our behalf. That is why we have a representative democracy, not a democracy in which everyone votes on everything. We elect you to make those decisions on behalf of all British Columbians, because we cannot all become informed on every issue and we know we may be blinded by our own self-interest. We ask you to rise above personal and regional self-interest on behalf of all citizens.

           Before any such action as a referendum is scheduled, I recommend the allocation of funds to make effective education about aboriginal treaty issues widely available to the citizens of B.C. That leads to principle 3.

[1400]

           Principle 3. Those most likely to be affected by a piece of legislation are those who need to be most carefully heard. Where are the first nations, the aboriginal peoples, in this debate? The First Nations Summit, the chiefs representing the majority of aboriginal people in B.C., have said they do not recognize a referendum on treaty negotiations as a legitimate exercise in democracy. They have said they will boycott such a referendum. That will leave a largely uninformed and self-interested majority voting on some as-yet-undefined questions about the lands and resources of a minority, a minority who have historic claims on those lands and resources. That is not democracy.

           The fourth principle calls for a relatively level playing field. Who would say that the first peoples of B.C. operate from a level field? Some villages in our province have an 80 to 90 percent unemployment rate. Educational attainment is lower among aboriginals than for the general population, and 54 percent of native housing is inadequate and overcrowded. Natives have the highest rates of infant mortality, child deaths from injury and suicide.

           In fact, Canadian aboriginals have the highest rate of suicide in the world. While Canadians as a whole enjoy the highest quality of life according to the United Nations human development index, aboriginals in Canada, taken by themselves, would rank sixty-third in the world. These figures come from Statistics Canada, the RCAP and AFN. Before we start holding referenda on aboriginal rights, we must work to level the playing field.

           Principle 5. The results of any referendum or treaty should provide for the development of a sustainable economy for the communities involved. That must contribute to levelling the playing field.

           Principle 6. Preparation for a referendum or for treaty negotiations should foster development of relationships between native and non-native communities based upon mutual understanding and respect. The current proceedings seem to be deepening divisions, not bridging them.

           Principle 7. The basis for resolving land and resource questions should be negotiation, not coercion or the principle that "might makes right."

           Principle 8. Referenda and negotiations should allow for legitimate grounds for treating different people differently. Equality does not mean that the same size shoe fits everyone. We recognize this when we make decisions about health care in our province or about persons with disabilities. It is difficult to weigh those areas in which cultural, social and economic differences mean using different standards for treatment.

           That is what you are elected to do: to weigh those difficult differences. The land selection model was used in the Nisga'a negotiations, but this is not the only model for negotiations and treaty-making. Chief Arthur Manuel of the Shuswap has proposed a model based on the reconciliation and coexistence of aboriginal with Crown title through co-management and resource revenue–sharing arrangements. We must consider different models for negotiations and treaties.

           Principle 9. Any referendum should provide clear understanding and agreement concerning the meaning and implications of its provisions. So far there has been an amazing lack of clarity about this whole process. I recommend that this committee be clearer about why they think a referendum is appropriate to treaty negotiations. My feeling is that it is not. I ask this committee to be clearer about the purpose of the referendum and to set the questions, not to ask the general public to do so.

[1405]

           Principle 10. The elected government of this province committed itself and the people of this province a decade ago to enter upon the formation of treaties with the federal government and the various aboriginal first nations by fair and open negotiations. A format for negotiations was agreed upon. The other two parties have been negotiating in good faith since that time. Why would we as the people of British Columbia now want to unilaterally suggest that that commitment and

[ Page 361 ]

practice should stop, change or be varied by some form of referendum? What has changed so seriously that we the people of British Columbia, through our elected representatives, would consider reneging on our prior commitments?

           J. Les (Chair): Thank you very much, Susan. Are there any questions from committee members?

           V. Anderson: The question I have is really on your last paragraph. The processes they're in is not that we would change the commitments which we have quite clearly made to make treaties, but we have heard consistently from both aboriginals and non-aboriginals — and even from the treaty commission itself in their recent report — that the process has not been functioning satisfactorily. I think we have 100 percent agreement on that.

           We have been mandated to try and find out why it wasn't functioning properly by hearing from people across the province. While the original principles were well intentioned at the time and all parties agreed on them, did they turn out not to be the proper principles to be working on, or were they not implemented properly?

           What are the principles that would take us to a quicker resolution than we have and to a more satisfactory one? So what we're really asking for is: do you have suggestions on the actual way in which we can secure those principles? That's the purpose of the referendum: to get clarity on the principles. That's what it's really about — in order to continue its process.

           S. Lindenberger: I think there's a great deal of confusion, at least with the people I move and work among, about what the referendum is going to be about. There are misconceptions that the general public is going to be voting on what the treaties are going to look like or what provisions will be in it. One of the things I'm asking for is more clarity around what it is you all are about, because I don't find this in the general public.

           J. Les (Chair): Any further questions? If I might ask a question, Susan. The principles that we might want to evolve out of this process could be many and varied, I suppose. You've touched on one in your point 5, where you say that "the results of any referendum or treaty should provide for the development of a sustainable economy for the communities involved." Could you perhaps elaborate a little bit and tell us how you see that happening? How do you see that sustainable or enhanced economy playing out post-treaty?

           S. Lindenberger: It would probably be more valuable if I put some thought on that and gave you a written statement. It seems to me that the land allocated and the resources and the use of those allocated resources need to address some of these dreadful statistics on social crises among aboriginal peoples. One of the reasons we elect you folks is to help find out ways to do that, but I will try to give that some thought and provide you with more information on that before November 2.

           J. Les (Chair): That'd be great.

           G. Trumper: On number 2, educating everybody on this issue. Having been around the treaty process for some considerable time and knowing how difficult it is to get the attention of people, do you have any suggestions as to how one can improve on not so much getting people educated but at least getting the information to them so that they're not just listening but they're hearing what is being said?

[1410]

           S. Lindenberger: I'm trying to work through churches and community centres to organize workshops, and Mr. Anderson has agreed to be part of one of those. I hope that will serve as a model for other workshops to allow people to come together — in perhaps a less intimating format than this — to give people a chance to sort of talk about what their conceptions are, what their ideas are. Then we'll have people who are in the know talk about what their understandings or their positions are, what some of the implications of various actions that people may take are.

           For instance, I've heard that some people are talking about boycotting the referendum altogether. Some people are talking about spoiling their ballots. Some people are talking about going and voting but don't know what they're going to be voting on.

           I think people can get together in community groups with some resource people who can provide accurate information so that the concerns are heard. People who don't want to learn aren't going to. This is not an issue I myself know a great deal about. I'm asking for help, for information. I will do my part in trying to see my area become better informed. I think there are other people who would be willing to help with that, but we need clearer material.

           G. Trumper: Thank you. It's a very thoughtful presentation.

           M. Hunter: Susan, could I just ask you…?

           J. Les (Chair): Sorry. One more burning question here.

           M. Hunter: In light of your last remark, I appreciate your willingness to do a little more thinking about it. Just looking at your principle 3, you make the statement: "That will leave a largely uninformed self-interested majority voting on some as-yet-undefined question about the lands and resources of a minority." I think that if you go to the terms of reference of this committee, you would immediately be disabused of that notion. I ask you to take that away with you today.

           S. Lindenberger: Okay. I thank you.

[ Page 362 ]

           J. Les (Chair): All right. The next presenter this afternoon is Miles Richardson. Good afternoon.

           M. Richardson: Thank you, Mr. Chairman. I am Miles Richardson. I am here as chief commissioner of the British Columbia Treaty Commission to make a presentation to the important deliberations of your committee. With me today are the commissioners of the Treaty Commission. To my right is Commissioner Wilf Adam. To my immediate left is Commissioner Peter Lusztig, and to his left is Commissioner Debra Hanuse. Commissioner Keating intended to be here with us today, but because of a medical reason she wasn't able to make it.

           The report I'm going to read into the record has been prepared and endorsed by the Treaty Commission. Decisions we make at the Treaty Commission are guided by a consensus of the commission. This report is such a document.

           Following our presentation we'd be happy to answer questions such as we're able or to engage in dialogue with you. We look forward to that opportunity. We've kept our presentation brief for that purpose. When we do get to that part of our presentation, if you have questions generally directed to the Treaty Commission, I as chief commissioner will field them and call upon other commissioners as appropriate. If you want to direct a question to any of the commissioners specifically, I'd ask you to just be clear and specific about which commissioner you'd like to answer that. We'd welcome that.

[1415]

           On behalf of the Treaty Commission I would like to thank the committee for this opportunity to appear before you. The Treaty Commission is here today to offer the committee a unique perspective on treaty negotiations in British Columbia. As the independent and neutral keeper of the B.C. treaty process we hope our comments will be both instructive and constructive to the committee in its deliberations. Informed by our experience monitoring and facilitating treaty negotiations over the past eight years, our perspective is further enlightened by a review of the B.C. treaty process which we recently completed. I understand that all the members of the committee have had an opportunity to receive this and hopefully to read it.

           The review includes an analysis of the 19 recommendations agreed to by the governments of Canada, British Columbia and first nations. The recommendations contain the fundamental commitments agreed to in creating the B.C. treaty process. I understand that copies of our report were made available to committee members. We encourage you to read this report on the future of treaty-making in this province.

           Our review confirms that there is a solid foundation for treaty-making in British Columbia. However, urgent action is necessary to make the treaty process more effective. I'd just underline that statement in light of one of the last questions asked of the previous presenter. The Treaty Commission, in doing this review of our past eight years of experience, has concluded strongly that the foundation we have established and invested in for treaty-making in British Columbia is strong and is appropriate to the task.

           Having said that, it does require urgent change. We're not saying: "Throw out the foundation that we've built." On the contrary, we're saying: "Keep it." We do need to make changes to make the process more effective, and those are the recommendations that we speak to in the report.

           In undertaking the review, the Treaty Commission sought to answer the questions many British Columbians are asking. What has been accomplished? What has gone wrong? What needs fixing? The result is a plan which, if followed, will restore faith in the treaty process, bring a measure of certainty to land and resource use and flow benefits to first nations sooner. We make a number of recommendations and ask the governments of Canada, British Columbia and first nations to act on these recommendations to make the treaty process more effective.

           It is too early to tell if action on these recommendations will come swiftly or slowly. The treaty process has already suffered greatly from delays. Substantive negotiations have been in virtual suspension for much of the past year by reason of the federal election campaign in the fall of 2000, the period of uncertainty preceding the provincial election call, the election campaign and now the government's settling-in period. This hiatus is further extended by the government's announcement that many important treaty issues will be put aside pending a referendum.

           It is our hope and a recommendation within our report that the B.C. government extends as far as possible the range of issues remaining open for negotiation while it awaits the results of its referendum. Let's not lose sight of how much has been accomplished, the lessons we have learned and the experience we have gained — all valuable experience that parties can now bring to the negotiations. Over the past year we did make progress, primarily through interim measures agreements — more than 60 agreements at last count, including the first land protection agreement in these negotiations. Still, we don't want to lose the momentum we have gained in any way or undermine the support for negotiations that already exists.

[1420]

           I think that when we look at the investment we have made over the past eight years and we look at what I just reviewed that's happened in the hiatus over the past year, the biggest benefit that British Columbians, Canadians and first nations have gained over the past year is really hard-won, step-by-step trust that's developed over the past eight years to at least stay at the table. In this report you'll see that over the past few months three first nations have left treaty negotiations for reasons we state in there, but the vast majority of those tables are still negotiating. As British Columbians we urge that we should not take that for granted. That trust is hard-won and it's gone in an instant, and that's an investment worth protecting.

           You face a daunting challenge. You have been asked to frame a question or questions that will engage the public in the complex arena of treaty negotiations

[ Page 363 ]

and elicit meaningful input. As you undertake this task, we ask you to bear in mind that the issues these negotiations must address have largely been laid down in law. Those will not change, whatever the results of a referendum, nor will the 19 recommendations agreed to by the governments of Canada, British Columbia and first nations that were recently affirmed by Premier Campbell.

           If you should fail in your task, you will pit people against one another and threaten not only the treaty process but peace in this province. If you succeed, the referendum and your work leading up to it could provide an opportunity to inform many more British Columbians about treaty negotiations. We trust that a major communication effort will be initiated by the B.C. government to do just that.

           If the provincial government is to achieve its stated goal of engaging British Columbians in this historic exercise, it will need to strengthen the processes now in place for public consultation and participation. This issue is addressed in our review of the treaty process. As well, we have attached to this submission a discussion paper we prepared titled A Constructive Approach to Consultation, which we shared with your government several months ago.

           One of our primary roles is to provide public information and education on treaty-making. Public consultation promotes public education and also depends on it. With limited financial and human resources we have done our best to meet the demands for public information. However, we have no way of knowing what demands will be placed on us during this referendum campaign or if we will be able to meet that demand.

           We remind the B.C. government in our review that these are voluntary, tripartite political negotiations. We have asked the government not to undermine the integrity of the treaty process by taking unilateral action. Unilateral or bilateral actions that run counter to the commitments already made weaken the process and destroy the trust that is so hard-won.

           The 19 recommendations and the report from the B.C. Claims Task Force are there to guide the principals — the governments of Canada, British Columbia and first nations — as well as the Treaty Commission. There are now 43 framework agreements between the governments of Canada and B.C. and first nations in the treaty process which set out the substantive issues for negotiation, the procedures and the time lines for reaching agreements-in-principle. The Treaty Commission urges the B.C. government to use these guiding principles and the agreements that are in place to move forward.

           First nations have borrowed $150 million to negotiate over the past eight years within the parameters set out in the 19 recommendations and subject to the framework agreements I just mentioned earlier. It is entirely appropriate and even healthy for any party to refine its mandate and guiding principles and to build support amongst its constituents. However, if the B.C. government's commitment is to change in a fundamental way or violate agreements already reached, there could be irreparable damage to the negotiation process and ramifications for the honour of the Crown.

           We acknowledge that change will be needed to make the treaty process more effective, but change must come as the result of tripartite agreement achieved through full, open and honest discussion, not through unilateral action.

[1425]

           The Treaty Commission has repeatedly called for more creativity and flexibility in negotiations to address the gap between first nations' expectations and the offers put forward by the governments of Canada and British Columbia. We strongly urge this committee to discard any suggestions that would diminish those opportunities for creativity and flexibility. In other words, do not unnecessarily tie the hands of the government. Be constructive in your approach so that we can build on the support we already have for treaty-making in this province.

           Ultimately the B.C. government must have the authority to balance the various interests in this province when it enters into agreements with first nations and the government of Canada. There can be no guarantee that each party to a set of negotiations will get everything they want. We must accept that treaty-making is about change that can be achieved through the give-and- take of government-to-government negotiations. At the end of the day, the Treaty Commission believes there can be treaties that give the parties enough of what they want so that there can be agreements.

           The goal is durable agreements that create a foundation for a cooperative and inclusive future for all British Columbians. Through your actions, this committee can reinforce the spirit of recommendation 2 of the B.C. Claims Task Force report, which states: "Each of the parties be at liberty to introduce any issue at the negotiation table which it views as significant to the new relationship."

           During this process the government of British Columbia should consider seeking a permissive mandate that allows for the kind of creativity and flexibility that we think will be necessary for treaty negotiations to be successful. When you are thinking about what the question or questions should be, we urge you to think long and hard about where the responses will lead. Any ambiguity around the referendum result may lead to litigation, further delay and disruption in negotiations.

           In closing, we should remember that all of us here today have a role to play in revitalizing and safeguarding the negotiation option. We can all appreciate that a breakdown in negotiations will lead to continued economic and social uncertainty and more litigation, confrontation and expense. There is the significant social cost of lost opportunities to consider.

           First nations recognize that litigation is costly, cumbersome and unpredictable and generally will yield only piecemeal answers that need to be fleshed out through negotiations. That perception could change if first nations have reason to believe that the future mandate of British Columbia fails to reflect the commitments made in 1991 or the framework agree

[ Page 364 ]

ments reached and cannot lead to fair and acceptable treaties.

           That's the conclusion of our oral presentations. In the packages in front of you are two additional sections, and the commission leaves with you, in writing, our response to some comments that have been made. We've been following the deliberations of this committee, and there have been comments made that the Treaty Commission disagrees with. This section is our attempt to put the right information in front of you.

           Thirdly, we have attached what was previously a confidential discussion paper, which we do from time to time with each of the parties, and a paper that we'd shared with the government of British Columbia in its early days. The position that the Treaty Commission has taken with regard to the referendum is certainly no secret. The Treaty Commission agreed with the government of British Columbia on the point that more effective consultation is good. We have in the B.C. treaty process one of the best, most thorough consultation processes we know of in the world for an issue of this type.

[1430]

           It's no secret. We need to do more. These are some of our ideas on how we can do a better and more effective job of public consultation. I'll leave that with you.

           Thank you, Mr. Chairman. That's the presentation for the B.C. Treaty Commission. As I stated earlier, we'd be pleased to engage in further discussion or address any of your questions.

           J. Les (Chair): Thank you very much, Miles. The first question goes to Gillian.

           G. Trumper: Thank you very much for your presentation. Over the years I've certainly been involved in treaties for some considerable time too. I guess I'm just adding the question back to you. It's not so much on the referendum, but I'm really interested to see — and I haven't read it all through completely — your approach to consultation, which is sort of an interest of mine.

           You talk about being the keeper of the process rather than the advocate of it. I would go back before you were on the Treaty Commission. There were some programs done on the Knowledge Network with forums. From the responses we got from the general public, it was certainly watched. Obviously, they were watching because they wanted to be informed. Have you looked at that sort of avenue? Because the Knowledge Network is not driven by any of the other TV stations that might have a leaning one way or the other, or however they work things, it is a venue, obviously, for education. Have you looked at something like that? Is the Treaty Commission able to do something like that to help get the information out to the public, which seems to be a big problem? I consider it a problem, not an issue, if we don't get people listening — or hearing, maybe.

           M. Richardson: It's a very important problem and a huge challenge to making treaty negotiations more effective. About those public forums that the Knowledge Network did, we also thought those were very effective. Since then, the Treaty Commission has started a couple of projects with the Knowledge Network to get out more information in a really clear and succinct form to the general public.

           Not to make excuses, but they're fairly expensive, and we didn't have the full support we needed to get those done. The Treaty Commission agrees that those are really important opportunities. We need to be creative in doing this, because people are interested in this issue. It's a very complex issue, but people are interested in getting involved. They want to be involved in an informed way, so that's our challenge: to get that information out there and get them engaged in dialogue on it.

           For the past two years — and we're going to have a third one this March — the Treaty Commission has sponsored, co-sponsored for the first year, discussions. We call it Speaking Truth to Power. We gathered by invitation 100 British Columbians who've been engaged to various degrees in the treaty-making debate. We called them together in Vancouver in one room to just face each other and discuss an agenda that we prepared for treaty-making. We found that very useful, and we're going to continue that this year. Also, as you see in this list of projects on page 2, we have one on options for engaging the public. They're called regional forums.

           This Speaking Truth to Power is a provincewide discussion in downtown Vancouver. We've also noticed that the community-to-community forums, which Canada and the Union of B.C. Municipalities and first nations have been engaged in, show a lot of promise.

           Really, if you look beyond, once we achieve a treaty, what's this about? It comes right down to what kind of neighbours we each want. What kind of neighbours do we each want to be? We need to have that discussion at the community level, and we really encourage that to continue. Our proposal here is called Regional Visioning Forums.

[1435]

           When we look at British Columbia, there are about five or six natural and political regions: Vancouver Island, the lower mainland, the central mid-coast, the north coast, the Cariboo. Just from looking at the debate over treaty-making and having discussed this with people in the regions, we think we could really generate effective discussions in these regions on that basic issue. What kind of neighbours do we want to be? What kind of future? What kind of things do we share in our futures? Perhaps we can just look at those broad questions and come to the point where treaty-making can be seen as a constructive tool for getting us there, far from being an impediment to that.

           I'm happy to announce on that initiative that a year ago the Treaty Commission put together a $150,000 proposal to the principals to treaty-making. Those are Canada, B.C. and the First Nations Summit. Canada has recently contributed 50 percent of that and asked B.C. to match that, so we can get on with this. The

[ Page 365 ]

Treaty Commission's role would not be to own or sponsor these forums but simply to be a catalyst.

           I know the lower mainland regional advisory committee has expressed strong interest in moving forward, as has the first nation in this area. The northern Vancouver Island local government groups and the first nations there have expressed interest, and we've got interest up in Prince Rupert in the North Coast area. We're excited about getting on with that. This dialogue must take place at all levels. I think we should all encourage it.

           M. Hunter: Miles and commissioners, it's nice to see you. We've come a long way since Dunsmuir Lodge. That's an in-joke.

           Miles, I don't know if you want to answer this or if your colleagues would like to take a stab at it. I do appreciate both the tone and the content of your brief. It's very helpful and encouraging. You talk in there about trust. Without having had a chance to study your paper but just listening to you and glancing at it, I want to be sure that you don't miss the point, which is one that we've heard at this committee and one that I'm familiar with. It is that trust also does not exist between ordinary British Columbians and both the federal and provincial governments, in my opinion. Let me give you a couple of examples to make the point.

           In my other life in Fisheries it is very clear to me that the federal government does not pay attention even to experts in the field, let alone to those with interests in the subject. If they did, then they would not have put an offer on the table to the Nuu-chah-nulth that proposed two separate herring roe fisheries, because as you, Miles, know and as I know, that's just not physically possible. It's a simple thing that anybody can understand. With the history of the federal government's relationship in that area, which is their jurisdiction, it has been very difficult for people to trust what's going on.

           At the provincial level, when I moved to Nanaimo and became involved in politics, the lack of trust that exists in my corner of the province is over the fact that people who have property rights and governance rights, including the city of Nanaimo and the regional district, were unaware of some of the land packages that were on the table as recently as February of 2001. It seems to me that with that kind of approach to negotiations, we cannot expect to build the kind of trust you talked about.

           I hope the commission's approach to consultation goes beyond the philosophical. I have no argument with some of the things you've said. It's commonsense, let's-work-together stuff that I've heard from you, and you've heard from me, for a long time, but I am afraid that on the ground, in the meetings, when offers are cobbled together, the people who have rights, interests, experience and expertise are left out of the process. I've just given you a couple of examples of that. I would appreciate any comments you or your colleagues have.

[1440]

           Also, let me put a question to you, and you can think about that while you're commenting on the point I've just made. You talk about the 19 principles and the commitments made in 1991. That's now ten years ago. Times have changed somewhat. We've made some progress, as you, Miles, point out. Are those principles unchangeable at all? Are they in place out of their own weight, or is it just that the process of getting the three parties that signed on originally to amend them is deflecting us from other activities? Are these biblical in proportion, and can they never be changed? Are they like Moses? I guess the question is: are we stuck with them forever?

           M. Richardson: Thank you, Mike, for your questions and your observations on how far we've come, and I underline the "we." The time Mike talks about, at Dunsmuir Lodge, was when the debate in British Columbia was beginning about how we were going to implement the Supreme Court's aboriginal fishing rights decisions. Of course, that was another place and time, but I think the point is that there wasn't even an engagement across the table on these issues. I think we've come a long way since then in British Columbia, and I certainly welcome that. I commend everyone on all sides of the table for that.

           The matter of trust that you referred to, which I spoke to in our presentation, is crucial to effective treaty-making, and effective consultation is essential to that. That's one reason, in the consultation discussion paper that we just shared with you, that page 2, point 3 speaks of guidelines for consultation. We should be really clear and frank with everyone who's involved in this discussion. The 19 recommendations laid out that these are government-to-government negotiations.

           There's been a lot of discussion over the years as to whether certain third-party interests — some who have a lot of political weight, others not so much — should be at the table with decision-making power. Clearly the process that's been agreed to says that these are government-to-government negotiations. The tough choices on trade-offs and give-and-take need to be made by the governments on behalf of their constituents.

           Having said that, we need effective consultation. The process that we lay out here is a good one that Canada and B.C. have participated in and have set up, but we can do more. We need to be more effective. One thing we're saying as a treaty commission is: let's develop a model for consultation. Let's talk to all of the interests involved in this discussion, each of the governments and their constituent groups, and let's figure out how to design an inclusive, acceptable consultation process.

           Let's not forget that government-to-government negotiation means that it can't be expected that any of the interest groups are going to have a veto over the negotiations. That's not what the commitments to the process mean. When we set up the consultation guidelines, we need to be clear on that. Let's address those at the front end, as we begin to lay those out and make it clear to everyone what their role in this discussion is.

[ Page 366 ]

           On the first point, I'd like to invite the other commissioners, if they have any views, to share them. I think that's a really important question.

[1445]

           The second point on the 19 recommendations is: are they biblical in their standing? I know that the B.C. Claims Task Force report and the 19 recommendations were referred to by the first chief commissioner as the bible for treaty-making in British Columbia. They are fundamental and important in this respect: treaty-making in British Columbia is unique in Canada in that this process by which we're negotiating is a government-to-government, voluntary political process developed and agreed to by all three parties.

           That's unique in Canada. This treaty process, the 19 recommendations, wasn't imposed by Ottawa, by Victoria or by a first nation. Those principals got together, talked about the needs and agreed on the process. The parties own this process.

           Can it be changed? Of course it can be changed. The Treaty Commission is saying that this process must be a work in progress. It's good, it's solid, but it's not perfect. Let's not pretend it's perfect. We need to focus on what changes we want to make, but those changes must be considered and agreed to amongst the three parties.

           If any one of the parties attempts to unilaterally impose change, that would breach the fundamental commitments and, I think, would spell the end of the ability to negotiate treaties. So yes, we can change. It must be by discussion and agreement amongst the three parties. We urge the three parties to engage in that process from time to time. It's healthy.

           M. Hunter: Can I just follow up? Miles, can I go back to your consultation while you were speaking, reading page 2, point 3? I know your views, and I understand them with respect to the fact that British Columbia and Canada are governments and are expected to represent the interests in their particular domains.

           When I read your guidelines, your focus is to say that the Treaty Commission could assist in developing ideas and guidelines for achieving more effective consultation between B.C. and Canada and local governments. Do you see the Treaty Commission having a role in making sure that Canada and British Columbia have access to and pay attention to technical advice that often only comes from those who have the shareholdings? They're often corporate but not necessarily.

           The example I gave to you on the fish side was one where anybody who'd been anywhere close to a herring in 25 years could have told the federal government, if they'd wanted to listen, that what they were putting on the table simply physically wasn't going to fly. It wasn't a matter of whether it was good, bad or indifferent; physically it couldn't happen.

           My question is more on the technical basis on which specific offers are constructed. Do you see the commission encouraging both governments to take notice of people who have expertise that doesn't exist, frankly, in the halls of government?

           M. Richardson: The Treaty Commission could play that role. Admittedly, over the past eight years, the Treaty Commission could have been more proactive in encouraging the parties to do things such as that. Perhaps that's an area that the Treaty Commission, of our own volition, could push more. We're often criticized. The popular thing to say is that the Treaty Commission has no teeth. We can't force any of the parties to do anything, but we can give them our best advice.

           If the parties agree that we should have more of a monitoring or enforcement role — enforcement is too strong a word — more of a proactive role in terms of effective consultation in that regard, then the Treaty Commission is, I think, well-suited to carry that out. We think that we should develop a model, a systemic approach to that, to ensure that those things that you're concerned about are taken into consideration as the consultation process unfolds. I think that yes, the Treaty Commission is well-suited to play a role in that. The principals need to discuss that, have further discussions on that. That's one of our recommendations, also, in our report.

           I'd like to ask Peter, Commissioner Lusztig, to make some comments on your first point about trust in the treaty process.

[1450]

           P. Lusztig: If I understood your comments, the trust was related to consultations in the case of the negotiations at the Nanaimo table. I'd like to just share with you my perspective on that, if I may, so that we appreciate that there are a couple of sides to this.

           The issue was complicated because private lands–willing sellers was an issue. There was inadequate Crown land there. Therefore, over about a four-year period an attempt was made to identify fee simple land where there were willing sellers around, and evaluation of potential purposes got underway. Much more land than would be offered at the table was being looked at because the three parties didn't wish the sellers to have a particular advantage. That's kind of a unique circumstance.

           The next point I'd like to move to is the fact that sitting at the table during those negotiations, where the matter of lands were being looked at as potential acquisitions, were a representative of the city of Nanaimo and a representative of the greater Nanaimo regional district. A request was made to Nanaimo to further enhance the provincial negotiating team by adding — I don't recall the number — one or two additional persons to represent the views of the communities — in particular, the local governments involved. That was agreed to. Therefore, the number of such individuals that rounded out the provincial team was greater, to my understanding, than existed at any other table. So there was an attempt to reach out.

           The third point I would make is: our records show that there were roughly 100 meetings between the three parties at the table — not necessarily together, but individually — and various communities or community organizations. One of the reasons we made the recommendation that is part of our annual report is

[ Page 367 ]

that while we had this many meetings, it's clear that we needed to find a different model, that we needed to do something differently.

           Even with that number of meetings and attempts to reach out, it did not fly. It did not work; there were concerns. I didn't want to leave the impression that one couldn't trust the federal or provincial government to consult. It was just that it was an unusual situation. They recognized that. They tried to increase the representation on the provincial team of local governments or groups. There still remained a problem.

           Finally, I'll say that there is general appreciation of all parties at that table that the reduced tax base, the zoning considerations and the potential violation of community plans had to be dealt with, and all three parties were prepared — and, I would guess, still are prepared — to deal with that. There was a sensitivity at the table, probably because of the representation from people from Nanaimo, the greater Nanaimo regional district and others. There was an appreciation of the problem.

           I simply wanted to round out the comments Miles made around consultation and, in part, address Mr. Hunter's comment.

           M. Hunter: If I may, I didn't intend to get into a debate about the rights and wrongs of the Nanaimo situation. I just used it as an example. Miles will remember a mutual friend of ours who said: "In politics, perception is reality." If there's a perception that there's no trust, then there is no trust. That was my point. But thank you for the clarification and your recognition that things have to be changed to take that circumstance into account. That's important too.

[1455]

           D. Hanuse: I just wanted to add a few more comments to the comments already made regarding, first of all, the building of trust. I think a critical step in building trust between citizens and their governments is to make sure everyone has a common understanding of the rules of the game. In that regard, I direct you to the third part of our written presentation, where there's a reference to "Guidelines for Consultation" on the second page.

           I think it's really important that we develop that. Miles has already alluded to that, and I'd just like to reinforce that point. When they're asked to be consulted, the public must have a clear understanding of their role. When they provide input, what is going to happen with that input? There should be some follow-up after that input has been provided so they're provided with an opportunity to know how their input has been factored into government decision-making.

           It's my understanding that at the end of the day, it's ultimately government's job to balance all of the competing interests that have been brought forward through the consultation processes. In order to build that trust, it's really important that at the outset there be a common understanding of what the rules of the game are around consultation. I just refer you to page 2, item 3 of the draft internal paper on consultation in that regard.

           In terms of the 19 principles, I'd just like to say that because we are in a tripartite process, any efforts to change the rules of the game as they currently exist would, in my view, require the agreement of all three parties. I guess the question I would put to you is: do we want to put the energy into changing what we believe is a fundamentally sound structure? Rather, it seems that the parties have problems in concluding treaties because there seems to be such a huge gap in vision and expectations. That's where the true problem lies in terms of trying to move forward to our goal of concluding treaties.

           It's a question of: where can we most productively put our energies in this exercise? If you ultimately go through the exercise and determine that yeah, the principles are where you need to do it, then maybe it's a good use of energy. I would suggest that the principles are fundamentally sound — a voluntary, six-stage political process, government to government. Those fundamental parameters of the B.C. treaty process were discussed, and a lot of effort went into that. In our view, that's still a fundamentally sound structure. I would just offer you those thoughts around that particular issue.

           P. Nettleton (Deputy Chair): Thanks for a great presentation. There's much in here that I would like to ask you about, but I'll just try to stick to one or two points, if I may.

           I'd like to refer you to page 4 of your submission, the first paragraph, where you stated — I think it's the third sentence — "As you undertake this task, we ask you to bear in mind that the issues these negotiations must address have largely been laid down in law." One of the challenges we've had over the course of the past few weeks, as we've sought to engage and inform British Columbians, is to remind them of that very point.

           You went on, further in your submission, to talk about the need to be constructive in our approach, to demonstrate creativity and flexibility. In your submission, I think you've practised what you preached in that you yourselves have done just that, even though you have serious reservations with respect to the whole referendum process. You have responded very constructively with respect to what it is we're attempting to do.

           My question to you is this: given my reference to your points with respect to the negotiations, the issues which are laid down in law and the need to be creative and flexible, how can we demonstrate that kind of creativity and flexibility that you have pointed to, given the task that we have before us?

[1500]

           M. Richardson: I think that's a really important and challenging question for all of us. On the first point. What do we mean when we say the issues have been laid down in law? The fact that aboriginal rights exist, including this legal notion of aboriginal title, is not controversial. The fact that they're so ill-defined that

[ Page 368 ]

they're not enforceable is also not controversial. The courts have asked us — Canadians, British Columbians and first nations — not to put it to them to define, to an enforceable level of detail, what those rights are.

           The courts have asked us, almost pleaded with us, to recognize that much of the area that aboriginal rights…. They are the most fundamental rights in Canada, recognized and protected by Canada's highest law but not being enforced. Those rights have largely been allocated elsewhere. Those rights are best given expression in the law of Canada through the give and take of political agreement.

           The Chief Justice's last words in the Delgamuukw decision or one of those decisions at the Supreme Court were that treaty-making is the biggest and most complex challenge facing Canada in the twenty-first century. We should keep track of that monumental task. The courts didn't define with certainty or finality the content of these rights. In the Delgamuukw decision, they went further than they had before when they said aboriginal title exists in British Columbia. There's no controversy about that. Aboriginal title, where it existed, continues to exist in British Columbia.

           They went further to say that aboriginal title is a proprietary interest in the land itself. Those are the court's words; those aren't my words. They're a real interest. Before there was a debate about whether they've a right — I better not go too far in interpreting it here — to pick a berry or catch a fish when other people aren't doing it. No. They said there is substantial interest in the land itself, but they didn't go on to define that any further. The fact that aboriginal title exists and continues to exist is clear in British Columbia. Now they're saying: "You people go and sort that out in a political process." That's what we're attempting to do here.

           Our simple point is this: if British Columbians, Canadians and first nations say, "We're not going to negotiate treaties; we're going to walk away from the table," those issues aren't going to go away. The matters of law which are in process are not going to go away. They still need to be addressed. That's the point we're making. To back that up, the Treaty Commission is firmly and unanimously of the view that the most effective way — the most constructive win-win way — to address these questions is through voluntary political negotiations. That's our point there.

           B. Belsey: Thank you, Miles, for your presentation and for the rest of the commissioners that have joined us this afternoon.

           I have four points that I'd like to bring up that we have heard over the last three or four weeks as we've been travelling around this province. These are points that we've heard more than once. They certainly are concerns of people that we've listened to.

[1505]

           The first one is the big-bang negotiations, I guess, as opposed to incremental steps for settling treaties. Another one is the regional treaties or treaties with nations instead of treaties with each individual band. A third one is equality. Will we have equality once a treaty is put in place? The last one is finality. Will the treaties be final? I wonder if you or any of your colleagues would like to speak on those four issues.

           M. Richardson: Again, those are four crucial points. I'd ask the others to give their views also. I'd like to address the first two.

           First of all, the big-bang theory of treaty negotiations, as we have called it, versus incremental treaty-making. That was the central recommendation of our review after eight years of treaty-making — that this big-bang notion of treaty-making, where the parties sit down over a five- or ten- or 20-year period and exclusively negotiate…. They work out all the chapters and details of the new relationship through a treaty, but nothing changes while you're negotiating, until the final day when you've achieved the treaty. You sign and ratify it, and the next morning the whole world's supposed to change.

           On such a complex, fundamental issue, we've found that this approach is overly simplistic. We have 43 active negotiations going on right now, and we need a new approach. Making that approach more difficult is this reality: after eight years of negotiations, the general public in British Columbia believes strongly that these negotiations are taking too long, that they're too expensive and that there are too few results. That's the reality of government. You're not going to be able to sustain it if that continues. We've got to address that reality.

           Also, first nations constituents are increasingly of the view that these negotiations are too expensive, they're taking too long, and nothing is changing in their communities. We've got to come to grips with that reality. If first nations, as they're building up debt, don't see achieving their objectives at the end of the road, they're not going to stay at the table.

           We've seen three first nations leave who I think have been pretty committed to negotiations. The upshot of that is that we need to do something. As Commissioner Hanuse said earlier, we believe that it's not the fundamentals of the process that are the problem; it's the actions we're taking to build trust and to narrow that huge gap.

           That brings us to our proposal for incremental treaty-making. It's nothing new or radical. In the 19 recommendations that we put in place ten years ago, recommendation 16 already contemplated this. Recommendation 16 called for interim measures agreements where an issue was festering that threatened the relationship.

           Incremental treaty-making. What does it involve? We think that each table in their area should look at opportunities for interim measures agreements. Let's look at trying out some of the solutions that will eventually, through a treaty, put it in constitutional concrete, as some people say. Let's try them out first, and let's make agreements. Let's protect areas that are contentious.

[1510]

           I know the government of British Columbia has stated that even in this pre-referendum situation, land

[ Page 369 ]

protection measures are one of your priorities. That's a good thing, and we're encouraging that. We're saying that where there's opportunities for economic partnership or cooperation, such as the forest industry has been pushing hard for, let's take advantage of those. Let's make a difference in communities now.

           Let's make a difference on the ground so that there's something to show for this good investment we're putting into treaty-making. Let's do interim measures agreements that maybe don't bring total certainty, if such a thing is even possible, but sufficient certainty for economic planning in the various regions of this province so the forest industry, the mining industry or what have you has sufficient clarity, sufficient certainty, to carry out their planning. Let's look at these opportunities in a creative and flexible way.

           I know Mr. Nettleton made reference to this earlier, about creativity and flexibility. Don't create preconditions in the mandates of any of the parties that are going to preclude our ability to be creative and take advantage of opportunities. We're saying: where these opportunities exist, do them. The Treaty Commission has worked with all three parties over the past year and a half, identifying where these opportunities exist, table by table. We've worked more proactively with the parties to remove obstacles to achieving these. We can really get some strong impetus to treaty-making and really build the trust with these initiatives.

           I know that about two years ago, after negotiations broke down in Westbank and there were some negotiations that achieved the forest interim measure, the first first nations to leave the process…. The Chief commented to us: "Jeez, if we'd had an interim measure like that, we'd still be in the treaty process." There are many opportunities like that.

           Also, incremental treaty-making contemplates that where there's a willingness to conclude a section of a treaty, do so. Maybe the first nation and Canada and British Columbia want to conclude, for example, the fisheries section of a treaty early and implement it. We're saying: do it. Maybe they want to do that on governance. Maybe that's not a good example. Let's choose something else. Whatever area of a treaty there's a will to complete, let's get at that. That's what incremental treaty-making is about: taking advantage of those opportunities.

           The second notion of regional treaties is nations versus bands. Right on. This treaty process was designed with about 30 negotiations in mind, roughly organized along a tribal group, cultural group, linguistic group basis. That hasn't been the reality. The Treaty Commission has been handed a quite general — and quite permissive, I'd say — definition of first nations. Once a first nation meets that definition, we don't have any authority to keep them out. They need to be brought in, and that's created strains on the negotiating resources. It's really challenged the Crown, Canada and British Columbia on dealing with issues like jurisdiction over lands and governing authority, with, say, a first nation that has 200 members.

           These are real issues. We address them in our report. We'd say the principles must address this as we move forward in treaty negotiation. With flexibility, with creativity, we think it can be done within the flow of negotiations without any major disruptions. But it is an issue. On the other two issues, equality and finality, I'd like to pass it to the other commissioners to address them.

           Commissioner Lusztig?

           P. Lusztig: If I may respond on the matter of equality, I'll respond by tying it to something in our report which I'd like to underscore. We did indicate in our report that it is really important that the question that is put not be ambiguous. Obviously, that could create problems for the government that, depending on the act in which the referendum goes ahead, may be binding. If it's ambiguous, that could then lead to further delays in the treaty process as the matter goes in front of the courts.

[1515]

           The term "equality" is one of those terms which is far from being unambiguous. I'd like to give an example, moving away from the treaty process and just looking at the issue of public finance. Let's say that we were interested in equality in the context of public finance. To some ways of thinking, equality is a flat tax. To others, equality is a progressive tax system. To still others, you could debate the rates at which the progression in the tax system kicks in. The question in the area of public finance, then, is: what is equality?

           I want to point out that there are great difficulties around what appears to be a very simple concept and a very simple term. I bring that back to our plea that care be given so that we not get into ambiguities in the reference question simply because they're innocent-sounding words that are used.

           I apologize. That's not a direct response to your question, but it does indicate why one has difficulty responding to situations where the term "equality" is used and argued for.

           B. Belsey: If I might just point this out, at the end of the day, I think what people want to know is: will we all be equal? Taxes are one thing. Will we be equal in everything we do? That's what I think I am getting from the people that have brought that point up during our conversations.

           P. Lusztig: I could have pointed to similar ambiguities in the term "equal" used in the context of aboriginal communities against non-aboriginal communities. I'm just saying it's very difficult. I cannot find a definition of equality in my own mind in that circumstance.

           W. Adam: I'll take a stab at "finality," but on "equality…." To me we're all under the Canadian constitution. Every citizen of this country is under the Canadian constitution — all the first nations and non–first nations. That's what this treaty process is all about. The first nations want to be part of the Canadian constitution.

           I just came back from a conference in Prince George, where the Nisga'a — Dr. Joseph Gosnell —

[ Page 370 ]

said that we're finally part of the Canadian fabric of life and under the Canadian constitution. That's where I see the equality. Under "finality," there are two titles: a Crown title and the aboriginal title. This is what the negotiation is all about: to make sure that these two titles can work together.

           I was doing a talk at the University of Northern British Columbia last week. The students' professor asked me: "I heard that extinguishment and surrender is no longer on the table. If that is the case, how are you going to have finality?" The way I answered him was that this is a very complex negotiation. That's why the three parties are sitting at the table: to define who has jurisdiction over what and if there's going to be any comanagement or anything like that of the lands — stuff like that. That's why some of the negotiations are taking a long time. It's because they have to be sure of who has jurisdiction over what areas, and that will take some time in doing. At the end of the day, there will be finality.

[1520]

           B. Lekstrom: Thank you, Miles and commissioners. Just a question, and Bill touched on it. There is a reality out there that there's a fear amongst British Columbians. Before I go on to that fear, I guess the issue that I see throughout British Columbia and having grown up and over the last number of years…. I think there's a greater acceptance today that this is not about whether we should or shouldn't make treaties. There is an acceptance and an understanding that's getting greater every day that we do and will make treaties, and we will negotiate those. That's encouraging from my perspective, because for a good number of years — and I live in the northeast of this province — there was a lot of talk that we shouldn't even be negotiating treaties. I see getting that understanding as a huge step in the right direction.

           There's still a fear out there in the people we talk to. Lots of times people want to push it to the side and not talk about it in forums like this. Everybody agrees that when we do negotiate these treaties, they have to be fair and equitable treaties. I guess my question is: can we negotiate treaties with equality for all? The people I talk to say: "Yes, Blair, we know that we have to negotiate treaties. We think that's right. Certainly by law, as it has been pointed out a number of times, that's our responsibility."

           Can we do it and at the end of the day sign treaties that do not give more rights to first nations versus non–first nations people? I guess it's that simple, because that's the way it comes to me. If we can get that message through communication out there and if it's possible to reach those kinds of treaties, the acceptance of the general public out there is going to be far greater.

           The reality is there's a huge fear that when treaties are signed off, it will allow greater rights for one over the other. I would ask if you think it's possible to achieve and sign off treaties that don't do that, because I see that as divisive.

           M. Richardson: That's a very important question, and I think it gets right to the heart of your work as a committee. The Treaty Commission has had a firm view on that, and I'll just speak about that.

           At the end of the day, in a treaty, will it mean that everyone's rights in British Columbia are the same? No, it won't. If that's a problem, we had better get to terms with that, because that's one of the challenges of treaty-making.

           The highest law in this country, which purportedly is equally applied to everyone — and one of the fundamental applications of equality is that the law protects everyone's rights — recognizes that aboriginal people have some unique entitlements that predate Canada that the constitution simply recognizes and protects. Some are characterized by that word that people often don't want to talk about. The courts talk about them as inherent. Do all Canadians and all British Columbians enjoy those rights? No. Those are aboriginal rights that are protected by the highest law in Canada.

           Our challenge is to find the way, by agreement, by the give and take of negotiations, of figuring out how to apply those rights in a way that we can all live with. In the B.C. Claims Task Force report, that's the primary purpose of treaty negotiations in British Columbia, as Commissioner Adam just reminded us: to clarify jurisdictions, to clarify by agreement, in a comprehensive way, who has authority or lawmaking power and responsibility for what. That's what treaty-making is about. At the end of the day, a simple reading of the Nisga'a treaty would show that.

           There will be different mixes and different situations throughout the province. One thing a treaty will achieve is — that's our objective, and that's what the Treaty Commission is urging the parties to do — a clarification, in a comprehensive way, of what the rights are and who holds them. We don't have that right now. That's leading to the uncertainty. A treaty must achieve that. Once we have that clarity, we'll be able to enforce them. That won't mean that everyone's rights are the same.

           I know it's getting late here. I like telling a story. One of the things I get to do as chief commissioner and working on the commission is meet and talk with people all over this province. One day I went to a Point Grey school, and there was a group of grade 9s talking about these issues. Equality came up — a really vigorous discussion. "Those Indians don't pay tax," you know, all the usual things we read in the paper every day. At the end of it, this young fellow who had been quiet throughout the whole discussion summoned all his courage and stood up and shared with his classmates what equality means to him. He said: "You know what equality means to me? That all of our rights are clear and that we respect each other." I was thinking, boy, we should be shipping this young fellow off to government, wherever it is.

[1525]

           B. Lekstrom: Thanks, Miles. It is a huge challenge. I think that far too often both sides of the table maybe

[ Page 371 ]

haven't been as upfront and forthright in saying: "You know what? The rights are going to be different." I think that whether it's accepted or not accepted, putting it out there and putting the facts on the table are, hopefully, going to start moving us ahead.

           M. Richardson: I think that's the challenge, and that's the great opportunity of your committee.

           B. Lekstrom: We could talk later on the side, because I don't want to make you think I agree with that. We can talk.

           V. Anderson: I'm tempted as to which one to go on now. I have to follow up on that one for a moment, though.

           We have three daughters, and they're all different. They're not equal in musical ability. They take after their dad. They're not equal in brains. Some of them take after their mother. What they do have is equality and respect that they're different. We have to treat them differently. We discovered after the first daughter that we didn't know how to look after girls, so we learned how to do it. We thought we were experts. Three years later, when the second daughter came along, she wouldn't respond to us like the first one at all, and we had to start over again, and so with the other one.

           The question I was really wanting to get at, though, is that the principles of negotiation, which is what we've been asked to deal with and which is what you have stressed today, realizing how critically important these are but that very few people in the province know what they are — just the simple fact of what you're working with…. You mentioned in your report that a major concern was communication and that people needed to be communicated with. Relate to trust, if the government at the moment attempted to communicate those principles, if they thought they belonged to us, people wouldn't trust them. We're in a quandary. Have you any suggestions as to how we can get the trust of the general public in any of the three government processes we're involved in? I think the public has a distrust of every level of government at this point, and that's our first hurdle.

           M. Richardson: As I said in my earlier comments, the Treaty Commission strongly agrees with the B.C. government on this point, that deepening and making consultation more effective is worth doing. In fact, it's important to do. That's a critical factor, we believe, in building trust. That's why we suggest developing a consultation model — perhaps "model" isn't the most illustrative word — to give all of the constituents of Canada, British Columbia, first nations and the governments at the table a clear understanding of their role in consultation. Give them clear expectations of what will be done with their input.

[1530]

           I don't think it's fair to give a lobby group or an interest group an expectation that they have a veto over the government's negotiating position and then purport to go and negotiate with the first nations. That's why we need some clarity as to what the framework for consultation is and what the place of each of the interests in that consultation is, and do it openly and transparently.

           At the end of the day, really, before you go to the table and close an agreement with Canada and a first nation, the B.C. government has some tough choices. That's what governance is about: some tough choices between competing interests amongst your constituency. To make those through a clear consultation process with transparency is the best suggestion we have for building trust. Do any of the other commissioners…? Debra, do you have any comments on that?

           D. Hanuse: I just wanted to speak to equality again at some point, whenever it's appropriate.

           V. Anderson: I just want to comment that already we've got feedback from people who have come to listen and then have come forward and decided they would speak and have then done extremely well. All of these are there on the Internet for everybody to read. So in a small way there's a consultation going on out there that almost anybody can get at.

           J. Les (Chair): I just want to make a comment or two, Miles, and then perhaps a question. We talked about trust. I think there needs to be trust in the process as well. Ten years ago when we set out on this exercise, as you pointed out earlier, it was contemplated that roughly 30 treaty tables would emerge. We've considerably exceeded that today, and one-third of the first nations are still outside of the process as we speak.

           We also see a lack of discipline in terms of some first nations being in the treaty process one day and out the next. You had a question earlier about regionally based treaty negotiations. In some cases we've seen bands that have been part of the process and have opted out. You get this kind of checkerboard approach. When the average British Columbian looks at that kind of process, they very quickly become bewildered. You could have a certain first nation actually get to the treaty-making process, but certain member bands within that first nation won't necessarily be signatories to the treaty. There are questions such as: what does that lead to?

           I would say today, looking at the process, that we may well end up with 60, 70 or 80 different treaties around the province. Given that we were contemplating 30 originally, people are saying: "Look, the process is not working. It's just kind of spinning out of control."

           Could you maybe comment on that first? I've got another issue I'd like to delve into a little bit later.

           M. Richardson: I think that "the process is spinning out of control" is overly dramatic. I don't think that's a proper characterization of it. There are challenges that this first nation definition or composition issue brings to the treaty process that we talk about in our review. We really urge the parties and principals to address

[ Page 372 ]

this issue and come to terms with it — of course, with the aid of the Treaty Commission.

           You're right: the treaty process originally did contemplate 30 first nations. The definition of first nations that we were handed — the Treaty Commission didn't make it — and that we must accept has brought us to this situation where we have about 50 first nations at 43 tables involved in negotiations.

           First nations don't leave and come back. All the first nations who entered the process…. There are some who have left, granted. A couple of them — for example, Treaty 8, up in the northern part of British Columbia — are contemplating coming back in. They started out of the gate, and then they stepped back. They haven't come back in, but they're considering coming back. First nations don't go in and out of the process. Although three have left in the last year, the vast majority have stayed. So there's stability on that front.

           Still, the size of first nations has been an issue that's been brought forward very forthrightly by Canada and British Columbia for the reasons I stated earlier. We need to come to terms with those challenges. If we're going to get comprehensive, endurable treaties across this province, we must come to terms with the issues involved in size.

[1535]

           There's a lot of discussion that's been had on these issues. Canada's national Royal Commission on Aboriginal Peoples addressed those matters, and there's a fair bit of guidance in sources such as that that we can use in coming to terms with this. The fundamental principle that guides us in that regard is that first nations define themselves. We need to find a way of bringing the first nation definition in line with the practical realities of implementing durable treaties.

           There are big challenges. We've acknowledged them, really, for the first time in our review. We're urging the parties to get on with them. But it doesn't mean the treaty process is toppling. It's a challenge. Do you want to address that, Wilf?

           W. Adam: Just briefly, the reason why there are so many first nations in our process is that all first nations are not the same. The people in the Kootenays aren't the same as the Tlingits up in the north. It's the same thing with the Kwakiutl; they're not the same as the Carrier, where I'm from. You have to take that into account. Some of those small numbers…. Once they get further down in the treaty negotiations, it's unrealistic to say that a first nation of 200 is going to look after their own court system or any of the education or any other matters that are on their treaty plate.

           That's why we said we'd look at regional visioning. Maybe in my area all the Carrier nations may get together, sit down with the Gitxsans to the west of us and the Tsimshian and do a common collective agreement that way. That is important. They will realize that down the road, for a small nation, they cannot govern themselves totally. They have to go with other first nations to have an impact in their area.

           J. Les (Chair): Just one brief comment on that, and then I'll move on to another area. I think it would be helpful, in cases where you have very, very small first nations wanting into the process, if the Treaty Commission were able to exercise some positive influence on a situation like that.

           I noticed in your last annual report you commented negatively on the fact that the Coquitlam band had not been allowed into the negotiating process by Canada and British Columbia. Clearly it's a very small grouping of people. I looked at that and I wondered: is the Treaty Commission in favour of a very small group of people like that being fully involved in the treaty negotiation process? That was certainly the implication that was left in my mind. My bottom line on this one is that it's not helpful when the average British Columbian looks at that and says: "My goodness, what are we involved in here?"

           M. Richardson: I'd like to be really clear on that point. The summary response to what you're saying is that the Treaty Commission has pointed this out, the matter of size, as a serious issue in treaty-making at the negotiating table. We urge the principals, the three parties, to deal with it. We don't have the authority to solve it on our own. In fact, the reason we pointed out that example of that small first nation that came into the process and Canada and B.C. refused to negotiate with them….

           In fact, the Treaty Commission doesn't have the discretion to keep them out if a first nation meets the criteria of the definition that we've been handed to administer. We didn't create that. I mean, the commission itself didn't create the definition. If a first nation meets that definition, we're bound to receive their statement of intent.

[1540]

           Now, clearly if Canada and British Columbia are unwilling to negotiate with a first nation once they've entered the process, we have a problem. We're not saying the sky is falling; we're saying we have further work to do on this issue, and let's get on with it. That's essentially what we're saying.

           P. Lusztig: I'll just briefly add to that. Our marching orders are clear. The reason we made reference to Coquitlam is that we wanted our marching orders changed. It makes no sense, in our view, to admit a first nation of that size, but we were not given the authority to keep them out. In fact, we were required to admit them. The only thing we had discretion over in that particular case was funding. For your information, we indicated to the first nation that we would not fund them unless they joined another group. They said they didn't require funding. In lodging the complaint, it was not that we felt comfortable with Coquitlam being involved in government-to-government negotiations but rather that we wanted the principals to change the rules under which we must operate. We're still hoping for that day.

[ Page 373 ]

           J. Les (Chair): It probably wasn't readily apparent in the document that that's what you intended to say.

           P. Lusztig: That's our fault.

           D. Hanuse: I think an important thing to keep in mind is that we have many objectives that we're trying to realize through treaty-making. One is certainty over ownership of land and resources in the province, which means reconciliation of Crown title and aboriginal title. Another goal of treaty-making is to build a new relationship between aboriginal and non-aboriginal people in the province. When you've got multiple objectives like that and then you throw on top of that first nations who have been deconstructed and aren't organized along traditional lines anymore, then of course problems like this are going to emerge.

           I think the important thing to keep in mind is: what is our primary goal in treaty-making? If it is building a new relationship, then yeah, you're going to have questions about economies of scale in terms of, perhaps, something viewed as a small first nation entity coming forward. How will it have the basis to be self-sufficient, given the small number of people, etc., in order to carry out their administrations?

           But if you look at the goal of treaty-making as being to achieve certainty over ownership of land and resources, then while this is a voluntary political process, we also are mindful that there is probably an entity out there that is the holder of title at the end of the day. If the holder of the title happens to be a small entity of 50 people, you're not going to have certainty over the ownership of land and resources if governments don't somehow deal with the body that may be the titleholder to the land. In that respect, can you afford not to talk to the group of 50 if what we're after is certainty over land and resource ownership at the end of the day? Arguably not, if there's a possibility that it is the small entity.

           However, maybe in other aspects of the new relationship there are questions that need to be raised about how we address this issue of size. Maybe the nation needs to think about partnering. If it's service provision, obviously on day one of the treaty they're not going to be in a position to provide the services in a cost-effective manner, and they have to look at creative arrangements, but at the end of the day, if they are in fact the titleholder, then we cannot afford not to talk to the group of 50. Those are the various matters that we need to consider and try and balance when we're trying to come up with solutions for making the process more effective.

           J. Les (Chair): When you get through all of the terminology and the wording and everything else, at the end of the day treaty-making is going to have a very practical effect on the ground. What I'd like to pursue very briefly with you, if I could, is simply asking you the question: what do you think in terms of the economic and administrative complexity of the British Columbia landscape post-treaty? How do you think that may be affected? The reason I ask the question is that in an increasingly competitive world and an increasingly global environment and the need to react and interact with the world quickly, I believe that to be an issue.

[1545]

           If I look at proposed treaties or, in fact, one treaty that is now in effect, I worry sometimes that we may be negatively affected. I say "we" in the broadest context. Do you have any comments about that? What is the grand vision of the B.C. Treaty Commission? What will post-treaty British Columbia look like? I'm mindful of what — he just left — the member for Peace River South said some time ago: "If you don't know where you're going, any road will get you there." In part, that's what this process is about. We need to know where we're going, what the principles are that underlie that, and how we best get there. That's what this committee will be grappling with over the weeks ahead.

           But back to the complexity of the jurisdictional and interjurisdictional point of view — how that might impact collectively on our economic prospects.

           M. Richardson: I understood the first part of your question to be post-treaty British Columbia with respect to the economic and political situation. That's the way I heard your question: what's our view on how that situation will be? Looking at it first of all from the economic perspective — business, various industry sectors and such — clarity and certainty as to rights and responsibilities are the friends of business. That's what we keep hearing. Where there's ambiguity, where there's uncertainty, it's a disincentive to effective business. Given that the purpose of treaty-making is to bring clarity and certainty to those, it follows that that should be an aid, that should help economics and the business climate.

           That's certainly one of the benefits or the products that we anticipate treaty-making would bring. On the political front, clarity of rights and responsibilities is important to political stability and to constructive political relationships. So I think that on that front, the rights of everyone are clear, and we're able to respect and enforce those. It doesn't take a lot of construction that it follows that the political climate should be more stable.

           I don't know what examples you're talking about when you say that where treaties have existed, they've not been so rosy, or they've not been so good. All I can say is that in this process, where interim measures have come into being, we're seeing some really exciting business initiatives taking place between longstanding, important forest companies. For example, in this province, not only first nations but people in the region, in communities, have gotten involved with forest companies on interim measures–type initiatives, have built economic initiatives and have generated some prospects, if not hope for their future. I mean, that's good news to us — building relationships, building trust, building a future. We think that treaty-making would just add to that.

[ Page 374 ]

           At the end of the day, really, you have a piece of paper that's a treaty articulating the legal parameters of this new relationship. But what is really important are the actual relationships on the ground between people and between communities that you've developed. What kind of neighbours we are — that's what's really important. That's where we're building. Of course it's not for the Treaty Commission, as tempting as it is, to define a grand vision of what post-treaty British Columbia is going to be like.

           Our job is to keep the process, to ensure that the commitments that have been made entering the process are lived up to and that the process of negotiations, as complex and as tough as it is, proceeds in as fair a way as can be. With the give and take of negotiations, it's up to parties to define post-treaty British Columbia. We believe and have said continually that it's going to be a better place, certainly in terms of those two factors.

[1550]

           D. Chutter: Two questions. One is more on the treaty process, and the other one is on the referendum. In travelling around for the last three or four weeks, it's been pointed out to us by several band leadership individuals that they're in the negotiation process but they do not have the legal authority to be in negotiation. It should be their tribal or regional council, for want of a better word. You've answered this in terms of size of bands.

           Why are they even in the process, occupying resources and time, versus working amongst the bands to reach consensus and then going as a group? Would it not help the negotiation process if that was done? My concern is that if they can't legally negotiate, what's the point of discussion, if it can all be thrown out at the end of the day?

           M. Richardson: If you know the answer to whether or not they can legally negotiate, that could be instructive, but these are voluntary political negotiations. Those legal entitlements are always a factor in the negotiations. As commissioner Hanuse talked about earlier, if the actual aboriginal titleholders are different from the group that's negotiating…. Aboriginal title is a legal concept. There's not an attempt to come to a definition of that at the outset of negotiations, but it is a legal factor that informs the parties in their political negotiations. I just say it is a factor.

           Before a treaty is concluded, we have to come to terms with that factor. It doesn't make the negotiations of that first nation illegitimate per se. There are a number of first nations who perceive the situation to be as you've described. There have been various approaches to how they resolve that, but before the end of the negotiating day, they've got to come to terms with it.

           D. Hanuse: It sounds like what you're describing, in part, is a question of legitimacy rather than legality. For our purposes, any group or entity that meets the definition of first nation for treaty purposes has, in our view, the legal authority to represent the interests of their constituents at a treaty table. Now, whether the people or representatives of that entity believe that they should belong to a larger entity organized along traditional lines or to a tribal council entity that's organized along different lines, it's perhaps their perception of the legitimacy of the entity currently representing them. That's one possible interpretation of what you're experiencing.

           D. Chutter: It came across as if we're negotiating but we don't really know why we are. We're not representative of the nation or the tribal area, so we don't have the authority to be negotiating. I was somewhat mixed up.

[1555]

           The second question is with regard to the referendum. For successful negotiations and implementation, I feel strongly that there's a need for public support, in terms of building trust, that the province is negotiating in the interest of the public. Perhaps a simple question to build that public support and trust could be to ask the public whether they would give a mandate to the provincial government to negotiate based on existing principles. I know that's perhaps not revolutionary because they're already there.

           By doing that, along with that comes a great educational opportunity, as is happening today through this group in this room, through Hansard going on the website and the media reporting in newspapers tomorrow morning. In addition to the education, there's the involvement of the public and there's the acceptance of the public at the end of the day. Can you see value in that simple process, but engaging the public and getting their support?

           M. Richardson: For the existing principle?

           D. Chutter: Yes.

           M. Richardson: I'm not trying to evade this, but as a keeper of the process, we have to maintain our neutrality amongst the parties on this, and we recognize that this referendum initiative is the government of British Columbia's initiative.

           I'll just offer this. We came here today with a very basic message. One is that the 19 recommendations and the principles embodied in there constitute current commitments to treaty negotiations, and one party ought not to deviate from those or it'll cause all kinds of problems. In looking at your question, that seems like a relatively constructive question, but my concern is: suppose the answer is negative. We're in a heck of a bind then, it would seem. But you take that advice for what it's worth. You asked the question. I don't think it's our place as the Treaty Commission to be saying what an appropriate question is.

           J. Les (Chair): Okay. We've gone quite a while, and we do have other people who wish to speak. On behalf of the standing committee, I do want to thank all of you for coming this afternoon and for indulging us for what turned out to be almost a couple of hours. We

[ Page 375 ]

very much appreciate that, and I'm sure we'll be meeting in the future.

           M. Richardson: Thank you very much. All the best in your deliberations.

           J. Les (Chair): We're going to take a ten-minute time-out.

           The committee recessed from 3:57 p.m. to 4:10 p.m.

              [J. Les in the chair.]

           J. Les (Chair): If I can get people to take their seats, we'll get the meeting underway. We will resume the meeting. The next presenter is Don Nickason.

           D. Nickason: Thank you, Mr. Chairman, standing committee and the general public. This is the first time I've ever been at a public hearing. I brought a friend of mine along for some support — Craig Noran, behind me here.

           This issue of treaties for aboriginal people is a very, very important thing that has to be settled and done with. They've waited over 100 years to get this thing done. Quite frankly, I can appreciate and sympathize with them because of the time that's being taken to get this thing resolved. We go through it ourselves when we face governments of the day. They've been faced with bureaucracy and broken promises. I heard the word "trust" a while ago, and I'm sure that they have the same feelings — whether they can trust us as we can trust them. Somehow we've got to be able to come to a meeting of the minds on that.

           I also heard Miles mention neighbours and how we can get along, but he also said that the rights that they have are going to be different than non-aboriginal people. Quite frankly, if I have a neighbour living right beside me and the law says that he can park his car in front of his property and the law says that I can't, we're going to be at loggerheads.

           One of the things I've noticed in some of the laws we have passed is that we have given them, either through constitutions that were already there — we can't change them — or we have allowed it to happen so that…. The aboriginal people, basically, are given more rights than the other people who are supporting them. It's like the children in the family having more rights than the father.

           For example, in the Criminal Code under the Firearms Act, a 12-year-old child living on a reserve who is aboriginal does not need to have a licence, does not need to have training. All he needs is a letter from the Chief or an elder to state that he needs the rifle for sustenance. As we all know, a lot of the reserves — not all of them but a lot of them — have drug problems, abuse problems, all kinds of problems, and it's a fact that the highest suicide rate is on the reserves. It doesn't make sense to me to give a 12-year-old child a rifle to go out there and hunt — by himself as well.

[1615]

           Before I go any farther with this…. I'm not going to take 15 minutes, but I'm very disappointed in how this has been done. I understand that there are all kinds of meetings throughout the province and on the Island, in various cities. This thing says: "We want to hear from you!" I was supposed to be here at 2:15. I was here at 2:30, and there was a group of people here — very educational. I appreciated what they had to say. However, I think that that could have been done in another meeting. This is supposed to be a public meeting, and right here it says 15 minutes for each submission.

           Like I said, I've never been to one of these before, and maybe this is the way it's done. If you're not getting too much support from the public, perhaps that's one of the reasons. We're busy people as well, like you. To come to Vancouver to one of these meetings, from somewhere between Chilliwack and Vancouver, can be fairly time-consuming. We all have jobs to do as well. If you're expected to look at a 15-minute presentation and you're supposed to be in at a certain time, I think that should be done. Hopefully, this wouldn't happen again. Anyway, that's just my suggestion.

           As far as the treaty situation is concerned, we have less than half a dozen treaties already approved in this province. The biggest one was the Nisga'a treaty. As I understand it — and certainly I can be corrected here if I'm wrong — that treaty basically has an open-door policy where, if any other treaties are signed that give more than the Nisga'a have, they can reopen it. I can tell you, if we're going go through this with the other 65 or more treaties to go and another 19 that aren't even involved in this thing, we're going to be doing this forever.

           While I personally disapprove of the term "first nation" to begin with because I don't think there's anything that says…. Well, I won't go into it. The aboriginal people have given that name to themselves, and for argument's sake, I believe we should not be negotiating separate treaties for each band but, rather, have the first nations come to an agreement among themselves first. Then and only then, a treaty can be negotiated to encompass all of the bands. So one treaty to encompass them all. Have them come to an agreement amongst themselves first.

           Items such as private property should be noted up front, where that is not a negotiable item. Both parties should understand that. If we continue along the same course, we'll never finish this process. As a matter of fact, what will happen to our province is that it'll have a negative effect on the economy, and we'll also have a population in this province that will not get along.

           As far as the provision for Indian reservations, I've had the pleasure of going up the B.C. coast to a number of places. Looking at the charts, you'll see the Indian reservations all mapped out. Very few of them are inhabited. What I would suggest in some of the negotiations that could go on is that we could consider giving fair market value for those particular areas and providing available Crown land — first nations' choice — of comparable value, not necessarily area. There's a lot of waterfront property along the coast that isn't being

[ Page 376 ]

inhabited, and the market value on that would probably be substantially higher than some of our inland Crown land.

[1620]

           One of the questions I would have liked to have asked these people is: what do you want? I haven't heard anything, really, about what it is that they want. Do they want complete control of the province? It was a few years ago that all of the bands, when they added it all together, wanted 110 percent of this province. It's impossible. It's also impossible to give them 50 percent.

           When this thing first started, if I'm not wrong, there were 6,000 aboriginal people involved that the federal government was supposed to have had a treaty with. Now, 150-some-odd years later, we're dealing with people who are still on the reserve. They want something, but I'm not really sure what it is. I don't know if anybody here can tell me. Why not get that out in the first place? I liked the answer that he gave, because I think it indicated where we're heading. No, the rights are not going to be the same for everybody in this province, and I'd like to know why.

           If the first nations people would like to be Canadian and part of the twenty-first century, they can't have it both ways. They either have to come together in a meeting of the minds and join the rest of the world or stay where they are. When they talk about their traditional rights, I see them able, by law, to go out and hunt and fish when others can't.

           There is game management that people who can't go out and hunt and fish during those times have paid for. Yet they see their neighbours, the first nations people, use a snowmobile, an ATV, a pickup truck, a power boat and guns, which they did not have traditionally. I say go out and hunt and fish according to the laws of the land, but if you want to do it traditionally, then do it purely traditionally, the way they used to. Don't use any of the tools that have been provided by the non-aboriginal people.

           I think it's very important that we establish what the aboriginal people really want from us. It should be one of the first questions we have. Don't accept the gobbledegook. Get it right out in the open and specifically say what it is they want. Then you'll have something that you can talk about. Right now we're talking around and around in circles, and it's probably one of the reasons why it has taken 150 years.

           I'm really pleased to see the Indian art throughout our province. I think it's fantastic, and I think that their culture and customs should be encouraged and enhanced. That doesn't mean that it has to take over everything. It doesn't mean that they can't be assimilated, if we want to use that word, into the rest of the province. I think there's more here than just a treaty. We're talking about a group of people in various parts of this province who are, in a lot of cases, in Third World–type environments.

           That is partly our fault, and it's partly their fault. They have every right to leave the so-called communal, communistic, welfare-type state that they're in, but a lot of them, for some reason, do not feel that they're comfortable with that, or they don't feel confident enough, or perhaps it's against the Indian custom itself. I don't know.

[1625]

           If we're going to see our neighbours improve their lot, I think we should encourage them to get away from this welfare-type state that they're in. As long as we encourage welfare, which is what this is, it's not going to happen. Hopefully, the first nations will want to be part of the rest of the non-aboriginal people in this country. I think they also have to be part of Canada's society, and they should be subject to all of its laws, criminal and civil. If they do, they should join us but continue to enhance their customs and their culture, and they should be prepared to contribute as non-aboriginals do towards the services provided by all levels of government.

           They should consider changing the reserves to municipalities with municipal government — not more, like the Nisga'a have. They should have elections by the eligible inhabitants of that municipality and a negotiated amount of land and/or dollars, or a combination of both, given to each adult family. Each one of the families should have clear title within that municipality, and it should be a minimum amount of the average residential lot. It could be more, but it should be a minimum average.

           Where traditional rights are already in place, such as the hunting and fishing rights and so on, then they are executed in the old traditional way, and I've already gone through that. Any future traditional rights that have not been specified should also fall under the same conditions.

           We're going into an era here where our land is not like it used to be. It isn't the way it was when the aboriginals were here, before we came here, and it won't be the same in another hundred years. We won't have all the trees and the fish and the animals roaring around like they are right now and in the quantities they are.

           What are we going to do when we have 100 white-tailed deer in the Okanagan and there's a traditional right there to hunt them at any time — when we have laws in game management that say we can only have one doe or one buck, that it has to be a certain size and that it can only be hunted at particular times and so on — in order to sustain those 100 white-tailed deer?

           If traditional rights are allowed to continue, if they don't go along with what's happening in the world today and what's going to happen in the future, they won't have any deer to hunt, and then are they going to come to us and say: "How come you're not supplying them"? That might sound stupid, but if they're guaranteed a deer, we're going to have to come up with a deer somewhere.

           This longstanding problem needs to be resolved, but it needs to be resolved fairly and reasonably and without any special concessions to any one group over another. That is, the rules and the laws apply equally to everyone, and the existing ones that don't should be changed. To do anything else will result in conflict, not harmony. I'm sure this is what we want — I hate that cliché — at the end of the day.

[ Page 377 ]

           I've got a lot more I could say. I read this thing on Tuesday, made a phone call and here I am. My apologies if I haven't spoken clearly. It was probably disorganized, but there it is.

           J. Les (Chair): You did just fine.

           D. Nickason: My comments are not just my own. I've done a lot of travelling in the province. I've talked to a lot of people who are not in government, who are not in any particular position, a profession or anything, just everyday run-of-the-mill taxpayers concerned that if this thing doesn't get done, we're in trouble, and if it isn't done fairly, we're in trouble.

[1630]

           I think we have a big problem and a big challenge in front of us. We must be able to state our point clearly. If we can try and get the Treaty Commission to agree that they get agreement, first of all, with all of the first nations…. Things have to be put right up front as to what is not negotiable, for one thing. Secondly, get them to also tell you right up front what it is that they want. They're talking about rights; they're talking about…. They're talking about taking over the province.

           That's what they're talking about. Everything. Your home. They'll tell you that if you can't give them land — and there's lots of places where you're not going to be able to give them land — you're going to have to give them money. If these treaties are like the Nisga'a treaty, where they're going to constantly come to you more and more, like they do down in the States, you're going to have to keep reaching into your pocket and give them more money. Somewhere down the road, there isn't going to be any left. Then they're going to come knocking on your door.

           I don't want to be casting fears and that kind of thing. I'm not trying to do that. I have every confidence that this is going to be done, and it'll be done right. That's all I can say.

           J. Les (Chair): Thank you very much. Are there any questions?

           D. MacKay: Just a comment. Don, first of all, most of us at this table six months ago were people you described previously as the average citizen on the street with concerns. Now we are government, and we've got a huge task ahead of us. Indeed, we acknowledge that, and we appreciate the input we've had from a lot of people.

           You asked the question: what do they want? That question was asked of a native presenter at our previous location, and I asked him if he felt the same as Joe Gosnell when Joe Gosnell said that the air, the land, the bugs, the water and the forest all belong to them. Everything — it is all theirs. This young native chap said: "Yes, that's the same stance we take." What do they want? You're right. I think they're looking for the province.

           Reality is going to set in, because one of the 19 principles that we have for treaty negotiation at the present time states that the total area of land held after treaty process will be proportional to their population. If the native population represents 3 percent of the total population of the province of British Columbia, when all these treaties are said and done, they should own 3 percent of the land mass of the province. That, in the big scheme of things, isn't really a big concern in my world, so I don't have a problem with that.

           You touched very briefly on the Nisga'a. I guess a lot of the concerns that most of us have today are based on the Nisga'a treaty, because that's the only modern-day treaty we have in this province to look back to for some guidance and direction. Some of the things that came out of the Nisga'a treaty…. I live in Smithers, so the Nisga'a treaty affected me personally. I've seen some of the concerns expressed by people who now live on treaty lands. There's approximately 100 non-Nisga'a people that live on Nisga'a lands that don't even have the right to vote on a government that's going to control their lives. That scares the hell out of me.

           The hunting regulations. You spoke about hunting. The Nisga'a people have harvest rights on species of animals on their core lands. After they have taken those animals, they're then allowed to come out and compete with other non-Nisga'a people in the rest of the province. They're allowed to hunt outside their core lands. That's not equality to me.

           The concerns you've expressed to us today we've heard before, and some of us, myself included, have some reservations because of the Nisga'a treaty, which I felt was poorly handled. I just wanted to throw that at you to give you some reassurance that some of us feel similar to you.

           We do have a job. We've accepted a job as government now to look back. We do have to negotiate treaties. There's no getting away from that. The courts have told us that we have to negotiate treaties, and we will negotiate treaties, but they're going to have to be fair to everybody at the end of the day. I just wanted to pass that to you.

           D. Nickason: Well, Dennis, I appreciate that comment. The Sechelt, as I understand it, have a treaty signed along those lines, have they not?

           J. Les (Chair): No, they haven't.

           D. Nickason: Okay. I thought they had and that it was supposed to be under a municipal-style self-government that they had. The Sunshine Coast…?

[1635]

           J. Les (Chair): It's Quinlan. It's quite a different scenario there. The Sechelts signed a self-government agreement in 1986 without a treaty. They have since been in treaty negotiations. There's been an AIP initialled, but the people of the Sechelt first nation have not yet ratified that agreement-in-principle. That's where that one is at.

           D. Nickason: Okay. Dennis, if I may, I'd like people to perhaps look at the situation that they have in

[ Page 378 ]

Saskatchewan. I don't mean this facetiously, but the population in Saskatchewan is changing quite rapidly regarding aboriginal and non-aboriginal peoples. Depending on how long this treaty process goes and depending on what happens to the economy of this province, we may also see the same thing happening here.

           There's one thing I was just wondering about, if I may. Is it feasible to make one treaty for all of the bands?

           J. Les (Chair): I think you might have heard the answer to that earlier this afternoon, if you were here, when the Treaty Commission representatives described how there is a lot of variation amongst the various first nations around the province. The Tlingit are not the same as the Salish, etc.

           I think the answer to your question is likely no.

           D. Nickason: Does that not fly in the face of what's going on with the residents of this province? The people in the northeast corner of our province have different problems than what we have down here. You can look at all the different areas here. Is that not the same thing?

           When it comes right down to it, we're not black and white. We are a group of people here who are living in a province. and hopefully, we can live harmoniously.

           J. Les (Chair): At the end of the day, what this exercise is all about is to promote harmony amongst all residents of British Columbia.

           D. Nickason: Okay, but if we're going to make different rules for different groups, that isn't going to happen.

           J. Les (Chair): Well, you need to check the constitution of this country, which indicates that aboriginal treaty rights are recognized and affirmed. That indicates something. That something is what we're talking about.

           D. Nickason: Okay. I'm not going to take the standing committee's time here and ask you what treaty rights means. Does that mean everything? If it means everything, we might as well just close the door now and hand it to them.

           J. Les (Chair): No, there's no expectation on anyone's behalf, I believe, that that is necessary. I'd prefer to think that at the end of the day, cooler heads will prevail and that we will work our way through.

           I want to thank you for being here this afternoon and being patient with us.

           D. Nickason: Thank you.

           J. Les (Chair): The next presenter is Cynthia McLean.           

           C. McLean: I'm going to speak off the one page that I brought, so I'll wait for it to be distributed. Since there's a lot of small print, some people might need to change glasses.

           J. Les (Chair): Okay, we will need to move along, because we have a speaker after you who is under some time pressure, as well.

           C. McLean: Okay. I'm Cynthia McLean. I'm a member of Christ Church Anglican Cathedral downtown here in Vancouver. I want to make it clear: I am not representing in any formal sense the cathedral, the Anglican Church of Canada or the Diocese of New Westminster.

           I have been involved in many committees in the church, in the diocese and in interfaith groups on first nations issues. Our concern is education. We're not taking any position one way or the other on the referendum. If people are going to participate, we feel that they need to have informed participation about what the issues are and what kinds of questions would be put to them.

[1640]

           What you have in front of you is the most simple form of flyer for a church event to talk about understanding treaty making and a referendum. This is only one example. Other speakers today have referred to educational processes that need to happen. This is the bringing-it-down-to-grass-roots kind of meeting that I think we have to have across the province.

           Church and faith communities can be a great help in that regard, because they are in all our communities and can facilitate dialogue. We're talking about facilitating dialogue. What is on this flyer is, in a larger print, a one-page resource list. It's going to be further developed in the next few months, and it's going to be annotated. It'll probably be changed a bit.

           My experience in the last two years — first of all, starting with the residential schools, because that was of most concern to the Anglican Church, without getting into the treaty process — is that it wasn't a matter that there wasn't enough information. Au contraire. There's much too much information for the average person to deal with.

           There are libraries full of books and studies and consultations. It's quite wonderful what has been done in the last ten years. That's why it talks about First Relations with First Nations Peoples in B.C.: A Decade of Dialogues, 1991 to 2001. Seeing the referendum as a step in the middle of this process, it'll easily be another ten years, I think, before we really get treaties sorted out.

           What I want to point out here is a framework for the referendum or the treaty process. We, at least at the cathedral and in the churches…. The governments talk about it, too, and Miles Richardson and the commission spoke about it. What we're really trying to get at is new relationships with first nations peoples here in B.C. One of the problems has been that there has tended to be tunnel vision on the part of different groups or different issues. When we're approaching this question of treaties, land claims and referendum, the bigger framework is right relationships with first nations people in B.C.

[ Page 379 ]

           What we see is a three-strand braid. One strand of that braid is treaties and land claims. The second strand of that braid is residential schools and cultural issues. The third strand of that braid is health and healing — health broadly meaning social welfare and all the issues pertaining to first nations people. We have to begin with a holistic vision of the three strands. We can't just look at residential schools apart from land or land apart from healing and the social issues on reserve. This is to enable people to begin to get a handle.

           As I say, this is one-stop shopping. This is an initial resource list. There are 20 websites that represent organizations that we feel at this point are players. They're players in this treaty process, all of which perhaps need to be consulted, whether it's women, native women, the Fraser Institute, all the government or environmental organizations — Suzuki, whatever. That's what the first is. The second piece of it is the issues. There are five books listed, only five of the hundreds. Then the third is videos, and it's on the communities, to give glimpses of people's faces.

[1645]

           This will be circulated in the next couple of months to everybody on the list and beyond, with a question, let's say, from the point of view of the Treaty Commission or from the point of view of the Fraser Institute or from the native law centre — from your point of view: which 20 players, which five books and which three videos would you put into people's hands to understand the issues in order to vote on them in an informed way? This is a recognition that we all have points of view. I think I know the B.C. process enough to know that there'd be large common ground on a lot of the organizations and books that I've already named, which people would look at to get a handle on these things.

           This is an example of a dialogue and of bringing up different issues. It's something that could be very simple. Several other participants today have talked about the need for education, and there is a need for some resources. I would say, too, that I know many of the people. I know Miles and the folks at the Treaty Commission, and they do great work in terms of education. The only problem is that they're a creation of the three negotiating parties, so they're perceived to be part of the government process.

           There could be more through LMTAC, the Lower Mainland Treaty Advisory Committee, and the others. I think there can be some resources and encouragement given or groups like the churches or faith communities brought in to decentralize the educational task and then to make it local. This can also be local. I've got the Lower Mainland Treaty Advisory Committee and the Fraser Valley Treaty Advisory Committee on it. If I lived on the Island, I'd put the treaty advisory committees from the Island on it. That's the kind of adjustment that could be made.

           I'm not at all certain about this referendum process and the questions, at the end of the day. These are questions we all have to discuss. I'm appreciative of the time this afternoon and wish you well. One question that I do have is this. I know that the submissions are finished on November 2 and that your report is due on the 30th. Will that report, at the time of submission, be made public?

           J. Les (Chair): Yes, it will.

           Any questions of Cynthia?

           G. Trumper: I want to thank you very much for coming. You've sat through today, and you've heard very varied views and comments on this issue. It is a complicated issue; there's certainly no question about it. You bring this forth as a tool for getting people involved.

           You obviously have a great interest in this. Can you tell me where you've been involved and how it's gone? Are people actually hearing what's being talked about?

           C. McLean: In terms of my own background, I'm an intercultural mediator. I spent 30 years in the China field, 20 years doing U.S.-China, Canada-China relations through the churches. All that work was partnership relationships. It was precisely 20 years ago last weekend that for the first time seven Protestants and three Catholics from the People's Republic of China met with the international Christian community in Montreal in 1981. The Canadian churches, American churches, European churches from that time on were engaged in the process of rebuilding relationships that were broken by the revolution and the Cold War.

           There were heavy political overtones to those conversations because of that Cold War. It wasn't just happy Christians being back together. There were a lot of politics and political positions that had to be sorted out as we worked together on the basis of mutuality and mutual trust — or building that trust, as Miles was talking about.

           As I said, I had been in the China area for about 30 years. I came back from China a couple of years ago. Soon after, I'd moved out here and decided I was tired of being global and that it was time to go local, going from cross-cultural to intercultural. I looked around the province. I have a long academic background, paralleling my China background, in first nations history and cultures.

           It seemed obvious to me that the most significant intercultural dialogues that needed to happen were between first nations peoples and others on all these different levels. It's the partnership model. It's through the churches, but we were also working with non-church NGOs, CIDA, the government. It's that whole framework and context of bringing people together.

[1650]

           In terms of right now, in terms of these particular issues, you asked a question earlier about whether people have actually listened or what the result has been. You can lead a horse to water, but you cannot make it drink. As I said, there are libraries full of materials. Then people will say: "We haven't been told anything." It's as the rubber hits the road. I think that's what Don Bell was talking about this morning. I would encourage people to go to their local levels to engage. That's when people will begin to become involved.

[ Page 380 ]

           There's still an awful lot here, but it's at least graspable, and what these organizations represent could be explained in an afternoon. Some people feel so intimidated by the complexity and all the issues, they don't even start. I do think we have an educational time from now on. Then the report comes in on the 30th, and the Legislature doesn't even meet again until February. I'm guessing that the questions of the referendum will be sometime in the late winter or early spring. It's not much, but we've at least got six months to play with and to focus the issues.

           J. Les (Chair): Thank you very much, Cynthia.

           Our next presenter is Mike Forrest. I realize we've kept you waiting for awhile, Mike. I apologize.

           M. Forrest: You're probably quite familiar with certain municipal functions I have to go to as of 5:30 p.m. in Port Coquitlam, so I would suggest I'm not going to make it. Anyway, that's another story.

           I've rather quickly put together a submission for you. I have a couple of pages I'll read and add to. My name is Mike Forrest. I'm director of the Area E Gillnet Association. Thank you for this opportunity. I've been part of the fishing industry for a long time. My background goes into fisheries management quite substantially with respect to the International Pacific Salmon Commission and the Pacific Salmon Commission Fraser panel and a whole bunch of things in between from the mid-sixties till now.

           The Area E Gillnet Association represents gillnet fishers licensed to fish the southern gulf of Georgia and Juan de Fuca. Some of you may understand the areas set out by DFO. This area in the south has about 400 licensed vessels. As a group, we believe in the fair and equitable settlement of land claims in B.C., but fair and equitable, of course, must apply to all parties involved. It must be equitable to all British Columbians, not just a portion of us.

           In reading various submission to your committee and wishing to limit the required reading, which in your case will be monumental if it isn't already, I would just state my support for the excellent presentations of Bill Otway of the B.C. Wildlife Federation and Mr. Phil Eidsvik, with another presentation by the B.C. Fisheries Survival Coalition.

           They've gone through a lot of detail that I won't go into. Needless to say, I agree with most of it. I haven't found any of it that I would disagree with, per se. I think I hold a reasonably similar attitude to most of the people that are represented in our association.

           As resource users, the issue of our access to the resource being taken away by treaties or treaty-related measures or interim measures is of utmost concern. Area E gillnetters have been severely impacted by a treaty-related measure, if I can put it that way — namely, the pilot sales program of the aboriginal fishing strategy of DFO.

           I've been an active part of the fishing industry all my life. I've invested heavily and conserved wisely with respect to the resource. We have had our licensed tenure of access to the resource systematically eliminated and reallocated to a new user group based on ethnic origin. This may be why the B.C. Liberal Party policy opposes pilot sales, and it follows, also, that it's wrong to entrench or codify this very negative DFO policy into our constitution.

[1655]

           Here we go again. As seen recently, DFO proposals at the Tsawwassen table harvest agreement as a side deal, interim measure or whatever we want to call it — they say it's outside the treaty, but it'll soon be in the treaty — again suggesting native-only commercial allocation, commercial rights based on ethnic origin entrenched in the constitution. I would suggest to you that that is absolutely wrong.

           The B.C. Wildlife Federation has seen that this is also happening to their membership and will happen more in the future. I would direct your attention to pages 7 and 8 of 15 in Bill Otway's submission. He goes into a pretty good dissertation about the pilot sales and the issues that have happened.

           I sat with Bill on the Pacific Salmon Commission's Fraser panel for many years — over ten. I was there a little longer than he was. In any event, he's still there, and I'm not, because I told Mr. David Anderson that the Canada that I stood for didn't distribute rights based on race. You can imagine that Mr. Anderson didn't appreciate that too much, and within a few months he replaced me with an aboriginal woman from Hope.

           Bill Otway does an excellent job of describing the process in those pages. I would certainly ask you to read them and understand them if you can. In the real world of 2001, the DFO policy of pilot sales has meant that in the last four years, the fishing community I've grown up with in the commercial industry has fished four days in four years, not because of a lack of resource but due to the lack of access to the resource.

           In a generic sense, the question would be: "Do you support the distribution of commercial rights based on ethnic origin?"

           Our association also believes that treaties must be fair and final. I'm sure you've heard that many, many times from across B.C., and you'll hear it again. They have to be fair, and they have to be final. If they're not fair, they will not be final. That's a corollary, I'm sure. To do this, though, there must be some connection of accountability between those who negotiate the deals and those who must live with the results.

           Area E gill-netters would liken the present negotiating process to how the pilot sales disaster originated. Maybe you don't know, but I had to live through it. In that case in 1991-92, Maryantonette Flumian and Bruce Rosen, both federal bureaucrats, took a little travelling road show around the province in a let's-make-a-deal mode. They made deals that are now causing great acrimony in our industry. They appeased the natives and rode off to the east successfully unscathed. These people had no accountability to our industry that their deals had decimated. We are left with their legacy, and they go off to their next appointment.

           This is precisely our feeling with respect to present negotiators. They would give away our public access

[ Page 381 ]

rights just to sign a deal. That's absolutely and completely inappropriate, and it's well-documented in probably better language by Bill Otway's submission.

           We're very concerned about the lack of understanding of the cumulative effects of all treaties. In the fishery, for instance, no one seems to understand that if the recent federal proposal to the TFN table — Tsawwassen table — were extrapolated to all the aboriginal groups in the watershed, there would be nothing left to satisfy the access rights for all other Canadians. I would suggest to you that the same thing is true for extrapolating the Nisga'a deal in the Fraser.

           Raising expectations that are not deliverable is a disservice to treaty-making. I have been to the Stó:lo table up the valley and a few places, listening to some of the discussions. I'm finding that these people doing the negotiating certainly speak in terms of delivery of resources that I do not believe the resource can sustain. If it can sustain their portion of the catch or their portion of the taking of the resource, there is going to be absolutely nothing left for anybody else.

           Modern treaties must include aboriginal people in the Canadian mosaic with the same rights and responsibilities as all other Canadians, notwithstanding, and I do understand section 35 and the differences that are there. This must include equitable payment of taxes by all Canadians for the delivery of service that we have come to expect as Canadians.

           A final statement. This may be because I have to go to a municipal meeting right after this. It seems ludicrous to me that since the BNA Act, municipal governments have been delivering services to Canadians and have not been recognized as a level of government in this country, but the federal government now is contemplating constitutional recognition for a new level of government to deliver most of the same services to a comparatively small portion of the Canadian population. These new governments will be the neighbours across the hedge from all other Canadians, and they will be expected to make it work long after the negotiators are gone.

[1700]

           It's this neighbour-to-neighbour issue that I think is the biggest one, even in the fishery. I grew up — I'm third generation on the Fraser River — with the aboriginal community in the fishery, and there was no discrepancy between aboriginal and non-aboriginal. We fished together; we pulled snags together; we mended nets together. In 1992 with the pilot sales coming on, it cut that community with a knife — right in half, right down the middle. There was nobody that could say that it was the same afterwards. I would like not to do that, not to have us go that route with respect to any other commercial rights in the resource.

           We are going to be the neighbours of whatever is produced for the new treaty governments. We have to be able to live with that person in the fishery. We should have one commercial fishery, not two. We have to live with that person across the table with respect to all kinds of regulations. The person before me put it quite succinctly with respect to parking. If you park your car on the road and you're allowed to, and I'm across the street and I'm not allowed to, pretty soon you're going to have major trouble.

           I would ask the people: do you support aboriginal government in the municipal, local government style?

           J. Les (Chair): Thank you, Mike.

           Are there any questions? I believe not, so again, thank you.

           Next presenter is Andrew Gage.

           A. Gage: My name is Andrew Gage. I'll start briefly with who I am. I'm afraid I didn't actually find out about this meeting until yesterday, so I don't have anything very prepared, other than some notes. Perhaps I'll leave my copy of them with you when I'm finished.

           I'm a lawyer, called in 1999, specializing in environmental law, and in that capacity, I've spoken in first nations communities about land use planning and about how their rights, under the constitution, relate to that area.

           I'm also a member of the Religious Society of Friends, better known as the Quakers, which is a religious body with a longstanding concern for the rights of first nations in North America. I'm co-clerk of the B.C. Quaker committee for native concerns, which has been active on that issue in B.C. for some time.

           I should make it clear that I'm not representing either the Quakers or BCQCNC, although I will let you know that QCNC, the Quaker committee for native concerns, will be trying to get a written submission to you before the November 2 deadline. I'm also a British Columbian. I was born here in 1972 in Nelson, and I've been raised here all my life. In structuring my submissions, I thought I'd speak from those three perspectives.

           First of all, as a lawyer, my concern about whatever questions you ask in a referendum is that they not infringe on the existing rights under section 35. You've already referred to the limitations that section 35 places on any government. Aboriginal rights exist in law, according to our courts, by virtue of the law and culture of the first nations themselves. They're not something that are granted to first nations. They exist in the common law by virtue of the government that previously existed prior to colonization. Those rights are now entrenched and have to be respected.

[1705]

           The purpose of treaty negotiations according to the courts — and you've already mentioned this — is to clarify or help to define what those rights are. It's not to grant new rights particularly, although if a first nation wants to change their existing rights for other rights, that might be open. The focus is on the existing aboriginal rights and clarifying what those are. We know that there are different types of aboriginal rights. Aboriginal title, aboriginal self-government, aboriginal rights of use of resources and lands have all been recognized by the courts.

           In order to negotiate any dispute of legal rights in good faith, both parties have to base their positions on what the legal rights are. What I fear this referendum is going to do is to base the government's position not on

[ Page 382 ]

what the legal rights of the first nations are but on what the people of British Columbia would like the legal rights of first nations to be.

           It's a crucial distinction. If the province goes in limiting itself to what would be politically acceptable to the people of British Columbia, the legal rights of the first nations are not going to be addressed.

           You also risk putting us in an interesting constitutional position, where the province may be told by the people of British Columbia to negotiate for something that the courts come out the next week and rule is completely contrary to the aboriginal rights that exist. This is my fear. The previous speaker spoke about a question relating to distributing rights based on ethnic origin. First of all, aboriginal rights are not distributed. They already exist. There's a fundamental misunderstanding about the nature of aboriginal rights.

           Similarly, the question related to whether or not aboriginal government should be modeled after municipal government, which I suspect a number of people have suggested — and the Premier has suggested — as a possible approach. We know that the courts have already ruled that first nations have rights related to marriage, adoption and a host of areas that the municipalities usually have no jurisdiction over.

           The Supreme Court of Canada has also left open that a particular first nation may have broad jurisdiction as an aboriginal right over whatever area was central to their culture when they were operating traditionally. I find it difficult to think of any type of question that would go to the content of the province's position that would not trample on the legal rights of the first nations and certainly limit the province in its likelihood to reach a fair and negotiated settlement. My key point as a lawyer is that a mandate for provincial negotiations should be determined in accordance with both international law and the Canadian constitution and not be restricted by the will of the majority.

           Speaking as a Quaker, Quakers have had a concern for first nations and also for the importance of signing and abiding by treaties since the establishment of the Quaker colony of Pennsylvania in 1681. Quakers are now fondly remembered by modern Friends, Quakers such as John Woolman and Lucretia Mott in the 1700s and 1800s, who were writing of finding God in the first nations they were dealing with at a time when governments were still aiming to eliminate these peoples entirely.

           I know that the first nations of British Columbia have sought to assert their rights as people since before Confederation and that for most of that time, until 1991, the provincial government declined to participate in negotiations with first nations, maintaining that the first nations of this province had not had organized societies and that therefore there was no legal need to acquire sovereignty in British Columbia through treaties. I see treaty negotiations not as an exercise in democracy, not even as a rights-oriented exercise — at least as a Quaker — but as a step towards us achieving a moral maturity that's been lacking through most of our history.

[1710]

           We're looking to enter into a relationship that recognizes the inherent equality of first nations peoples. Again, a moral relationship may or may not be politically popular, but it is the responsibility of government. My key point, as a Quaker, is that the government of British Columbia is under a moral obligation to develop a right relationship with first nations. My friend from the Anglican church also mentioned the importance of a right relationship.

           As a British Columbian, the absence of treaties in this province affects me, as well, in that we, all of us, are living on ground that is stolen, historically. The history of our province has whole areas that we have good reason to be ashamed of, and I think that has had a profound psychological effect on all of us. To put this referendum to British Columbians asks, yet again, non-native British Columbians to determine the fate of the first nations of the province. It's something we've seen time and time again in our history, and it's not something I'm proud of.

           My key point, as a British Columbian, is that we've all got an obligation to work with first nations to create a province that works for all of us.

           J. Les (Chair): Thank you. Any questions of Andrew?

           V. Anderson: I'll pick the last one up first. If I understand you rightly, and I'm paraphrasing here, you're saying that in your opinion, in failing to be fair with the aboriginal people — in mistreating them or whatever we have done with them, in people's opinions — that has had a psychological effect upon all of us, if nothing else. Can you elaborate a little bit on that?

           A. Gage: Until relatively recently, it was…. I'm going to revert to speaking as a lawyer for a moment, because I think it's a good illustration of where this type of psychological effect can be seen.

           The law of aboriginal rights and title is not new. There's case law going back a couple of hundred years. Until the B.C. Court of Appeal ruled in Delgamuukw, there was a virtual blindness on the part of most lawyers — not all, but most — to this fact. The Supreme Court of Canada had divided on the existence of aboriginal title, with an equal number saying that aboriginal title existed as didn't. Yet the chief counsel for the province continued to assert categorically that aboriginal title didn't exist until Delgamuukw.

           What can we use to explain that blindness? I think there continues to be a level of hostility to this issue among many people that can only be explained by the fact that we haven't dealt with it. That's what I'm pointing to.

           V. Anderson: You're suggesting that there's a guilt factor there…

           A. Gage: Yes.

[ Page 383 ]

           V. Anderson: …that we all live with, but you're talking about it.

           A. Gage: A guilt factor, and also a defensiveness. A recognition that perhaps we have something that we ought not to.

           V. Anderson: I'll follow up and ask about the moral authority. Could you say a little more about that?

           A. Gage: Sure. Basically, my position is that a moral position may or may not be the will of democracy. We've seen many circumstances where the democratic majority — for reasons that were on occasion self-serving or, at any rate, seemed valid at the time; in this case we are definitely dealing with the circumstance where there's a lot to be gained by being self-serving — ignored the moral claim in favour of the popular claim. Although it's not always lived up to, it is the responsibility of government to try and rule justly.

[1715]

           J. Les (Chair): Okay, thank you very much, Andrew.

           I believe that concludes the people who wanted to speak with us this afternoon. Our next presenter will be coming on at 6:45, so at this point we will recess until that time.

           The committee recessed from 5:15 p.m. to 6:47 p.m.

               [J. Les in the chair.]

           J. Les (Chair): All right. We will reconvene the meeting.

           Our first presenter this evening is Marlie Beets from the Council of Forest Industries. Come on up, Marlie.

           M. Beets: Good evening, Chair of the committee and ladies and gentlemen. My name is Marlie Beets, and I'm vice-president, aboriginal affairs, for the Council of Forest Industries. It is most often known as COFI, so forgive me when I make reference to COFI. That's what I'm talking about. Sometimes I make the assumption that everybody knows who and what COFI is, and that's not always the case.

           I believe you all have copies of a position paper that I and my colleagues at COFI developed over a period of about six months or so. We distributed the paper this summer, in August. In addition to the full copies of the paper, I've also provided you with some bulleted speaking notes that I'll use tonight for reference.

           I understand that what you would like is a short presentation and then an opportunity for some questions and answers. I certainly would welcome that. I would feel very comfortable with a dialogue as opposed to a presentation. I will go through a few of the highlights from our position paper. I will try and get through that quickly and then welcome your questions at the end, although if you would like to interrupt me with something partway through, please don't hesitate to do that.

[1850]

           I'll just point out that COFI is a provincial organization. We represent most of the lumber manufacturers in the province. We have a membership of over a hundred forest product companies as well as serving as the umbrella organization for six other associations, either of a regional nature or a product nature. B.C. Pulp and Paper Association is one that we represent, and the Canadian Plywood Association.

           The members of COFI are extremely dependent upon access to Crown resources. The importance of that feature is that in British Columbia, as I'm sure most of you know, there's very little private land — unlike some of our international and even national competitors, who have vast areas of private land to call upon in order to purchase the timber they need to run their businesses successfully and economically. In British Columbia, that's not the case, so our members rely on access to Crown land, virtually all of which is being claimed by one aboriginal group or another.

           Members of COFI have been very aware of those aboriginal claims. We've been dealing with them for a couple of decades. I'm proud of my colleagues in the forest industry, many of whom were active in this area even before I was. They took a very positive and proactive stance in the early 1980s, working with governments and with aboriginal groups to identify the problems.

           Certainly, at that time some of the forest companies were dealing with controversies over access to land and resources. They worked to identify the problems and to assist aboriginal people in convincing governments to put in place a process to address the issues that were disrupting the economy and making B.C. a very poor investment climate, which is something we're still experiencing.

           Subsequent to those activities, a treaty process was established. COFI members have been very active in that process since its inception — in fact, prior to its formal inception. The status of our engagement now consists of participating on TNAC, the Treaty Negotiation Advisory Committee, which I've been a member of, along with a couple of other forest industry colleagues, since even before TNAC began, back when it was the provincial advisory committee. We have many members who are also active on local regional advisory committees.

           I mention those points because I think it's important for anybody dealing with negotiations to recognize that those in the forest industry — again, I do say this with some pride and confidence — have vast experience dealing with aboriginal people on all fronts, both through the treaty negotiation process and in their daily operations. I like to think that we come to these issues with a fairly strong background of experience.

           Part of our history with aboriginal people is mixed. That runs the gamut all the way from various road blockades and disruptions to our commercial activity right up to the more positive side, where there are a significant number of cooperative business relationships, joint ventures and so on that are engaged in by

[ Page 384 ]

aboriginal people and the forest companies in the province.

           Some of those experiences have come about for a couple of reasons. For one thing, when aboriginal people are looking for attention from the media or from government or the public, it's very convenient for them to hold forest industry operations as hostage. They find it handy, so if they want attention for some of the issues they are pursuing, they will often resort to blockades that disrupt our operations.

           On the other hand, industry — the existing forest operations — are a very logical partner for those aboriginal communities that want to get engaged in a positive, constructive way in commercial forestry activity. That leads to the various relationships. As I say, they run the gamut from blockades to positive business ventures.

           One question has become more prominent in the last while, particularly with the Treaty Commission — I believe very wisely — identifying that there are different visions of the outcome of treaties. It's something we've addressed extensively in our full report, which I certainly encourage you to read, if you can. The question of what the vision is for the outcome of treaties — and identifying that there are different visions — brings everybody to the point, I think, where they need to ask themselves: "What is our objective? Just what is it that we're trying to get out of treaties?"

[1855]

           I will note here that the whole issue of treaty negotiations is extremely complex. I probably don't have to tell you that, but that is the truth. That's the reality. In order to try and simplify these complex issues, when I said to myself, "What is it that we want out of treaties?" I went back to those two points I just made. If we wanted to put it in a nutshell, I would say that what COFI would like to get out of treaties is to prevent what I refer to as hostage incidents and to encourage the other side of the coin, which is more positive business relationships and encouraging the involvement of aboriginal people in commercial forestry activity.

           In its simplest terms, those would be two objectives that COFI is seeking as an outcome of treaty negotiations. In our full report, we've gone to considerably more detail and length to discuss how those things can be accomplished.

           Again, in working through the various issues, we looked at what our objectives are and attempted to determine whether or not treaties could meet those objectives. With our experience in dealing with various controversies over Crown land as well as the potential for positive relationships, we identified several key features that we think are necessary in order that treaties will meet the objectives identified. Those are these: treaties that will prevent controversy and disruptions — as I've put it in more blunt terms, prevent the forest industry from being a hostage when aboriginal people have issues they want dealt with by government — and on the other hand, promote more involvement of aboriginal people in forestry economic activity.

           In order for treaties to meet those objectives, we think they need to include several components. I'll just read those through from my notes, and they're also in the report. We think the treaties need to determine and define the land areas that first nations will own pursuant to a treaty. They have to define the status of those lands. They have to define the rights and authorities that first nations will exercise on those lands.

           Treaties must ensure that ownership of land by first nations cannot impede access to Crown or private land. Treaties must ensure that off or outside the defined lands that are owned by first nations, aboriginal people have the same rights and roles and responsibilities that are available to them the same as all other Canadians, and we think treaties need to ensure unfettered provincial jurisdiction over Crown land and private land that are not held by first nations.

           Finally, in order to accomplish those things, we think that treaties need to receive a renewed commitment from all the parties including the so-called third parties. We, as the forest industry, are in that category.

           Again, I'll summarize some of the points that are in more detail in the paper, and I'll gladly cover this in more detail through some questions, if you have them. Some of the key elements that we think are necessary components of this renewed commitment, some of the features that we think would help to advance the treaty process are, as one example, some time-limited interim agreements, particularly those that would help first nations achieve some of the economic benefits that are available through, in our case, the forest industry and quite possibly through other resource industries and other business activities as well, not just resource activities.

           We think that another element is that whatever agreements or arrangements are pursued in the context of interim or pre-treaty agreements, they need to avoid the disruption of existing commercial operations. In order for that to happen, we think that any of these pre-treaty agreements need to include the effective involvement of third parties, again, those being the non-native participants in the negotiation process.

           As I think we all know, there are a number of processes between TNAC, RACs and other various forms with line ministries where third parties have had opportunities to engage in discussion with government and with aboriginal groups prior to agreements, yet we've had no specific attempt by any of the parties to define a specific or meaningful role for those parties who happen to be directly affected by some of these negotiations. Our members would very much like to see something along those lines put in place.

[1900]

           By directly involved, I don't mean a party to the negotiations. I realize that this is a tripartite arrangement in terms of treaty negotiations. The fact remains that some third parties have financial interests, do have legal interests and, in the case of our members, have legal interests in some of the issues that are being negotiated. We think that in that case, those people who are directly affected need to have a stronger and very meaningful role as the negotiations are entered into.

           We think one of the other very important elements of a renewed commitment — again, by that, I'm referring

[ Page 385 ]

to things that we think would get the process back on track — would be sufficient financial resources from governments, particularly the federal government, to assist with training and education of aboriginal people and aboriginal communities who wish to be engaged in various resource development activities. It's the same question that I know we've all heard about and dealt with on many fronts, often referred to as capacity building.

           I can say proudly, on behalf of my own colleagues in the forest industry, that our members have spent literally millions of dollars over the past decade or more working directly with aboriginal communities in many forms, whether it's providing for education…. In fact, COFI co-sponsors a forest technician training program with the Ministry of Forests and FRBC. We have everything in the industry from scholarships to business ventures where companies have invested in equipment to help first nations become engaged in the industry, and so on. Millions of dollars have been spent in that way by the corporate sector.

           Particularly in the economic dire straits our industry finds itself in right now, we simply cannot continue funding those activities, but we do think the members of the forest industry have a great deal to offer aboriginal people. We would like to assist them to become skilled and able to benefit from the economic resources that we are privileged to have in British Columbia. We would like to see some financial assistance from the government but particularly from the federal government. With respect to the federal government, they have shown a greater willingness to engage in those activities more recently, and I think we all need to work to encourage that.

           Another essential element of a renewed commitment is for government to address the question of fair and timely compensation for any third parties who are directly affected by treaty negotiations and by interim measures. Again, I know that isn't news to any of you, but I would be negligent if didn't emphasize that that's a key element from the perspective of the forest industry.

           I'll conclude my remarks with a couple of references to the referendum question. I understand and very much respect the fact that part of this standing committee's work is to identify some potential questions for a referendum. We have not emphasized an effort to try and craft or put words to specific questions. I will say quite frankly that we will leave that in your capable hands, but we can suggest some themes that the questions might address. I would draw those themes from the issues that we raised.

           Again, we've emphasized our concerns and issues, and it would lead to some possible themes for questions, something along the lines of: should treaties result in the same rights and opportunities for all citizens outside treaty settlement land? Of course, that respects the fact that treaties will be protected by section 35 of the constitution. Because of that fact, we will always have some so-called special or different rights for aboriginal people. As I alluded to in our report, our approach to that situation is to limit those special or constitutionally protected rights to the settlement lands.

           We think that a question should possibly be crafted to address the level of support for more effective involvement of third parties in the negotiations. I think it's going to be important for the committee and the government to come up with some questions or an approach to this whole process that is simple, and I will refer again to the complexity of it. It's going to have to be simple, and in that context, perhaps even a question about whether there is a strong feeling for a renewed commitment to the treaty process might be worth considering.

           My third suggestion is that there is possibly some question that would explore the potential for interim measures, the willingness for people to engage in pre-treaty arrangements or perhaps even an incremental delivery of treaty benefits prior to the conclusion of a full agreement. That's an idea that has been discussed at length and proposed by Treaty Commission members and many others.

[1905]

           I would conclude those remarks with an invitation for some questions and discussion, if you'd like to expand on any of those points. I would simply reiterate that COFI members, ourselves, are absolutely committed to the treaty process, and we think that we simply need to get on with it, accomplish the objectives we have laid out and consider what other people's objectives may be as well, including those from aboriginal communities.

           J. Les (Chair): Thank you, Marlie. Questions? Perhaps I'll start with one.

           When you talk about unfettered provincial jurisdiction outside treaty settlement lands, are you perhaps indirectly referring to the scenario that exists today outside of the Nisga'a treaty settlement lands? There's a significant area of land there where there are varying degrees of co-jurisdiction or co-management. Is that what you're trying to get at there? As I would see it, you're trying to avoid the complexities arising from that in the results of the treaty process.

           M. Beets: I'm referring to that set of circumstances. Yes, definitely. I wasn't meaning to focus on Nisga'a as an example in any way.

           J. Les (Chair): It's the only example we have.

           M. Beets: That's very true. It's the only example we have of a treaty, but I think that to drive home the point we're making, I would compare it more to the situation we face now with assertions of aboriginal rights over virtually all Crown land. That is the situation that our forest operations face in terms of getting approval from provincial authorities for any activity on Crown land.

           Virtually every square hectare of land carries a burden, or at least a potential burden, of aboriginal rights. That means the Crown does not have clear title. We're getting into the legal realm, which is murky

[ Page 386 ]

territory for all of us, but nevertheless, that is what informs the current state of the law, and it's what informs negotiations.

           Right now we have the potential for assertions of aboriginal rights over all Crown land, and the Crown's title is burdened. Therefore, provincial decision-makers, the officials who decide whether members I represent can continue with their harvesting plans and so on, are fettered by the fact that if they grant approval for some activity, it could possibly infringe on an aboriginal right. If that's the case, you're getting into a very serious situation because of the constitutional protection of aboriginal rights.

           It's that fettering of provincial authorities and burden of aboriginal rights on Crown land that is causing us a great deal of extra expense, litigation, disruption, hostility and controversy. Our experience with that leads us to conclude that if treaties, which also enjoy constitutional protection, result in a broad group of treaty rights that extend onto Crown land, it's possible we will be no further ahead.

           The members I represent, instead of being held up, disrupted and having difficulties with assertions of aboriginal rights, will simply be facing the same problem with assertions of a treaty right. This is what leads us to say that the most effective way to avoid that problem or that issue is to confine treaty rights — those that enjoy constitutional protection — to settlement land.

           Did that answer your question?

           J. Les (Chair): Yes, it did.

           When you talk about the additional financial resources that are required from governments, you make a particular point about the need for the federal government to recognize that requirement. Is there something behind this that you perhaps haven't touched on yet in terms of the federal government perhaps not having sufficiently recognized its responsibility there?

           M. Beets: The point was a very definite one, and yet I do emphasize that in the past year, I would say, I believe the federal government has very clearly recognized both its responsibility and the benefits of federal funds going toward initiatives that can help with various training projects and so on to increase the capacity among first nations people.

[1910]

           For example, the federal government did spearhead a program called the capacity initiative, which was aimed in that direction. As with many programs, there are opportunities for improvement. Particularly, I think the federal government at this point needs to be encouraged to expand its willingness to fund pre-treaty initiatives beyond the categories that are currently referred to as treaty-related measures.

           By that, I mean that this category of treaty-related measures, which currently are the only pre-treaty activities that are cost-shared between the province and the federal government, is very limited. The governments — both of them, but particularly the federal government — have put in quite strict criteria by which they determine when they will cost-share, and I think they need to loosen the purse strings a little bit more, recognizing that the provincial government is contributing, potentially, some resources in terms of forest tenures, timber licences, any number of different things along that line. The federal government needs to ante up with some money to help the aboriginal people take advantage of those opportunities.

           Quite frankly, there is no point in providing a forest tenure or any other kind of a resource to a group until they are ready to benefit from it, and I say that with no disrespect. We can look at the forest industry in British Columbia right now. We have some of the most skilled, talented, best resourced, most experienced people in the world participating in our forest industry in the large and small facilities, and they're having a very tough go of it right now.

           That's with the licensee sector, those who hold tenure, right down to contractors who have logging equipment. They're all having a very difficult time. I think it's foolish and naïve to think that simply providing to an aboriginal community some natural resources, whether it be timber or some other resource, is immediately going to result in them gaining benefits from it unless there is also some funding provided so that they can work to gain the skills to be able to utilize it. That was my short answer. I'm sorry.

           V. Anderson: Just when I'm listening, I'm getting the feeling that not only are there difficulties in the interim at the moment, but is there also an indication that the land might be tied up in perpetuity in treaty decisions and not be as accessible as it is now as Crown land?

           M. Beets: Yes, that's definitely our fear. That's exactly what we are concerned about. We can take the example in British Columbia of Treaty 8. Again, I mean no disrespect to the aboriginal people who are involved in Treaty 8, but it is an example where we have an existing treaty, albeit an old one and written in very vague language, which makes its interpretation challenging.

           The difficulties that have arisen for members in the forest industry and those in other resource-development activities is that the treaty includes a hunting right, so the Treaty 8 participants have a right to hunt on Crown land.

           Notwithstanding the fact that the language in that treaty says very definitely that the right to hunt stays in effect only until such time as the Crown needs the land for other purposes, our experience has been that the courts have interpreted that as meaning that regardless of whether the Crown needs the land or has granted a licence for timber or other extraction operations over the land, the treaty right to hunt on that land is a right that enjoys constitutional protection. Therefore, it can either take precedence over other rights or, at the very least, can disrupt or slow down approvals for other activities. Again, the officials who make those decisions have to determine whether or not the right of other people to engage in activities on that Crown land might possibly infringe the treaty right to hunt, which

[ Page 387 ]

is not constrained to a particular geographic area. It expands over a very, very large area.

           V. Anderson: Then the fallout of that is the uncertainty of jobs for a lot of people and a reduction of income to the provincial government of a considerable nature. Is that right?

           M. Beets: Very considerable.

           V. Anderson: Everybody is involved, so they should take note.

           G. Trumper: Thank you, Marlie, for your presentation. It's nice to see you again.

           M. Beets: Thank you, Gillian.

[1915]

           G. Trumper: It's been a while.

           We've had presentations here over the last few weeks on interim agreements, and some are saying that's how we should go to get to the end of the road. There are others who are saying that we should not be having interim agreements. Would you like to comment a bit more on where you see interim agreements with the forest industry?

           M. Beets: The difference in opinions on the wisdom of engaging in so-called interim agreements is a difference that exists within our own industry. Although COFI members are on record as reaching consensus that we do support interim agreements, we have a number of qualifiers that go along with that support, and we have some members who don't think it's a smart idea. They subscribe to the school of thought that says you should not be granting any benefits or parts of an agreement until the entire agreement is concluded. I'm sure somebody can argue very strongly for both sides or both schools of thought.

           Our majority view is that a great deal of what causes frustration within aboriginal communities is the consistent optic of seeing timber and other resources extracted from areas that they have an interest in, and they believe they are not getting any financial benefit from it. I would argue that indeed, because the revenues from the activity of those resources is what funds all of our health care, our school system, our roads and everything else that goes on the province, they are getting some benefit. The fact remains that many aboriginal people don't believe that.

           As I mentioned earlier, in many cases when aboriginal people express their frustrations at not having these issues resolved, they blockade those who are engaged in commercial activity over the areas where they have an interest.

           It may not be a perfect answer, but our view is that if aboriginal people were earlier rather later able to gain some direct benefit from the development, extraction, management and so on of the resources in the areas where they have an interest, they would be (1) far less frustrated with the process and perhaps a bit more patient and committed to resolving it to its conclusion; and (2) in the short term, they would certainly, we think, be less inclined to disrupt that commercial activity. If they're getting a piece of the action, they're going to be less likely to stop the activity that's going on. Obviously, that would assist our members, but we believe that it would also assist the people in the aboriginal community as well.

           B. Belsey: Thank you, Marlie, for your presentation. I just want to build on that last thought you had there. It was a question I was thinking about then. I always find examples in the gas and oil industry in Alberta, where firms have partnered up with first nations and developed some very successful exploration and development companies. I'm wondering why we don't see that in British Columbia. At least, I'm not aware of any.

           There may be one or two pockets. In the area I'm from, I so often hear, "That's a first nations area there; we can't get in there," and I've often wondered: "Why don't you go and partner up with them and do your development?" You were getting close to that a minute ago.

           M. Beets: Yes, there are many of those partnerships. I take some responsibility if you haven't heard about them, because I will confess that many forest industry members, COFI included, have probably not done enough to publicize the numerous business ventures and so on that are in existence.

           Some interesting statistics you may not be aware of are in our report. The Ministry of Forests in British Columbia has established quite a bit of data recently to evaluate what the aboriginal activity is in the forest sector. The data show that approximately 6 percent of the annual allowable cut in British Columbia, the AAC, is held by aboriginal groups. It's a combination of licences, some renewable, some not renewable, plus various forms of tenure, woodlot licences and so on that comprise those figures.

[1920]

           Many are joint ventures or cooperative business relationships between an aboriginal community and an existing forest company. As well, there was some recent research done by the federal government that demonstrates…. We have a database now that catalogues approximately 215 aboriginal forestry businesses in British Columbia of all sizes — large, small, contracting, primary manufacturing, value-added and so on. Again, many of those are in partnership as well. There is a lot of that activity.

           The reason there isn't more is probably because of the cost involved. When you talk about a partnership, one of the key elements is that both partners need to bring something to the table in order to form a partnership. That's partly what brings us to the requirement for the federal government to put some money in this pot. Right now, when the first nations attempt to come to a table or a business meeting in a boardroom to discuss a partnership with a forest company, in most cases the aboriginal participant has nothing to bring.

[ Page 388 ]

           What we have been seeing with these so-called partnerships is that forest companies have been paying their portion and paying the aboriginal community's portion as well. Many times the community members are not trained. They don't have skills or equipment. They don't have capital. They have some people who might be willing to work.

           They have a potential labour force, but quite frankly, in this industry in the province, we don't really need a labour force. We already have a very highly skilled labour force. Unless or until such time the aboriginal communities have something to bring into the partnership, they don't look very attractive.

           I'll be brutally honest. What the aboriginal people have to bring to those partnerships at this point is maybe a commitment that they won't blockade or disrupt the activity that the commercial entity is already engaged in. That may get you by for awhile, but that's not a very sound basis for any kind of partnership. We're seeing some of the fallout of that unfortunate circumstance.

           J. Les (Chair): Any other questions? Thank you very much, Marlie.

           Following up on that last point Bill raised, if there are some very good examples out there of these partnerships — perhaps I speak for others — I'm not sure that they're well enough known. Success should always be celebrated, I feel, and widely advertised. It could lead to good things happening elsewhere. Perhaps some work could be done to make sure that those successes are better illustrated for others to observe and learn from.

           M. Beets: Yes. I take that to heart. In fact, in the month of November, as soon as you're finished your report, perhaps, there are two or three conferences coming up in British Columbia. One is the fairly widely known B.C. Business at the Summit conference that focuses exactly on that topic, where a number of corporate entities come together with first nations groups and talk about their successful business partnerships. There are quite a number of them. There are two or three other conferences coming up to explore the same sort of thing. I certainly agree we need to do more to talk about those and to learn from them.

           J. Les (Chair): Great. Thank you very much.

           The next presenter is Donald MacKenzie.

           D. MacKenzie: Good evening. Before I begin to read, I'll say that I feel pleased and honoured to follow the lady who preceded me. Actually, it may be in some way a rather advantageous time slot, given some of the topics that were referenced by her and by some of you.

[1925]

           I'm Donald George MacKenzie, regional features, Indigenous Business Magazine, Vancouver. Perhaps eclectic dilation follows.

           1. Do you agree that aboriginal persons and communities in British Columbia should be treated fairly, justly and compassionately?

           For aboriginal persons and communities in British Columbia to be treated with consistent fairness could constitute a dramatic paradigm shift. Smallpox has been recently identified as likely the most potentially damaging weapon usable by bioterrorists. That weapon was deliberately used against aboriginal populations in this province in the late nineteenth century. It is a deplorable and unconscionable political and historical legacy that is quite incontrovertible and redounds redolently to our ongoing shame.

           Justice at its best, in its only valid and valuable form, is all about remedial balance. Punishment is peripheral, if not adventitious. A balanced approach to issues enunciated as urgent by aboriginal persons and communities would be refreshingly innovative and optimally productive.

           Compassion is a sadly rare virtue that takes second place only to its elder sibling, empathy. "Walking a moon in another's moccasins" is a hallowed and resonant aboriginal cultural resource. Our fatally frenetic society should humbly descend and consequently joyously ascend to such salubrious practice.

           2. Do you agree that Canadian Supreme Court decisions do and ought to apply fully in British Columbia and should take effect promptly?

           British Columbia entered Confederation in the 1870s and has ever since been somewhat of a rogue province. The influx of tens of thousands of former "forty-niners" from California verged on catastrophic for affected aboriginal populations and severely challenged normal British values, such as they were.

           The Canadian connection was perpendicular to, not parallel with, the Pacific coast's north-south geo-economic dynamics. Nonetheless, British Columbia remains a mainstream provincial partner in the ongoing, evolving Canadian federal experiment, watched with a species of bemused admiration by other sectors of humankind, greater and lesser.

           Hundreds of millions of indigenous persons elsewhere on earth continue to wonder whether Canada will ever get it right vis-à-vis its own first nations, Métis, Inuit and urban aboriginal components. If not here, where? If not now, when? If not us, who? If not, what then?

           The bottom line is that you don't just applaud and quickly implement the likes of Gladstone and Sparrow when it suits your purposes. You do so with dignity and composure and efficacy, even when contemplated consequences can cause concern. There was a scriptural allusion which occurred to mind but which I didn't enter: "a person who swears to their own hurt but changeth not."

[1930]

           3. Do you agree that timely and balanced resolutions of the tripartite treaty process will substantially benefit both aboriginal and non-aboriginal sectors in British Columbia?

           It is a stated philosophical touchstone of the British Columbia Chamber of Commerce, to paraphrase, that whatever may occur in treaty or not, strong, positive relationships on the ground everywhere in the province between aboriginal and non-aboriginal neighbours

[ Page 389 ]

are absolutely essential. An interpreted biblical definition of neighbour is "who needs me is my neighbour."

           In the context of the preceding philosophical touchstone, the British Columbia Chamber of Commerce and its active president, Mr. Winter, had been assiduously working in collaboration with the First Nations Summit Society toward the upcoming "Business at the Summit" colloquy scheduled here in Vancouver during the coming month of November.

           Our national aboriginal publication, Indigenous Business Magazine — British Columbia–based — feels proud and honoured to have been approached regarding a sponsorship responsibility for such a well-conceived and prestigious initiative. Imagine what beneficial potentials could lie in wait, where nascent, embryonic treaty understandings actually accomplished bearing fruit.

           In summation, do you agree aboriginal persons and communities in British Columbia should be treated fairly, justly and compassionately? I propose the answer is yes to that. Do you agree Canadian Supreme Court decisions do and ought to apply fully in British Columbia and should take effect promptly? Again, yes is proposed. Do you agree timely and balanced resolutions of a tripartite treaty process will substantially benefit both aboriginal and non-aboriginal sectors in British Columbia? Thrice yes.

           All my relations. Umpas Hadanee, Raven tribe.

           J. Les (Chair): Are there questions?

           V. Anderson: I have two sets of questions. Could you comment, from your Indigenous Business Magazine status, what you have discovered would be your key issues in developing better relations between aboriginal and non-aboriginal people?

           D. MacKenzie: Thank you for the question. I'll tell a story that a person told at the last Business at the Summit here in Vancouver just about a year ago. As I recall, it was actually an aboriginal–non-aboriginal forestry joint-venture project. He told about how they met a number of times, and he was kind of concerned. There wasn't really that much of a breakthrough going on. Maybe the trust and credibility was still in the first trimester or maybe stillborn or something. Anyway, one evening he mentioned that an aboriginal elder came along and put his hand on his shoulder. He said he realized that there's a lot of import to that hand on the shoulder.

           In my 40 years or so of involvement with aboriginal people along this coast and in this province and elsewhere, I comment fairly frequently to people that the very worst thing you can ever do with aboriginal people is provide them with the perception that you're trying to force the agenda. They have a very strong feeling, I would say, that there's a need for things to unfold as they should. I think that's part of it.

[1935]

           I'll offer one brief additional comment in response to your question. It seems to me that somehow, in the past several months since the political transition in this province — maybe it's just subjective — I haven't heard the phrase "triple bottom line" very often. I thought about maybe introducing a different vocabulary concept. The phrase I thought of starting to use was "one-third bottom line."

           That would be sort of a reverse-onus type of thing. It's normal. What is meant by "triple bottom line" is normal procedure. It's not something that's added on. If all you're thinking about is short-term profit, then I'll put it this way: you're guilty of a one-third bottom-line approach. So it's kind of a reverse-onus type of thing. It needs to be comprehensively understood. I think it's generally instinctively understood by aboriginal people and somewhat understood by some non-aboriginal people in business that what is meant by "triple bottom line" is "mandatory." It's not an option.

           V. Anderson: Thank you. I appreciated your eloquent use of the English language, by the way. You may have led me partly into my second question. As I listened to you reading, I was wondering whether our strong concern for the aboriginal neighbours we have at the moment is coming primarily from a consideration of them as neighbours or a consideration of those who would make our bottom line better.

           D. MacKenzie: Yeah. I'll tell another story. It's sort of the aboriginal way. Though I'm not aboriginal myself, I try to emulate it. A regional vice-Chief of the Assembly of First Nations, Satsan Herb George, is Gitxsan-Wet'suwet'en, and very much involved in Delgamuukw. Two or three of his stories are in a document put out by the Fraser Institute, oddly enough. Isn't that intriguing?

           One of the stories that he told was about trying to build a relationship with municipal government up in the Skeena River–Bulkley River area. He was warned about one meeting which was going to take place one particular evening. There was going to be a white guy there who was referred to as "the scowler." He was told: "If you can get anywhere with this white guy we call the scowler, that would really be something."

           The meeting started, and sure enough, the white guy was scowling away. They took a break partway through the evening. Satsan was proactive and went over and introduced himself to the scowler. The scowler said: "Are you related to so-and-so?" Herb George's answer was: "That's my grandfather." Then the scowler got a tremendously different look on his face — almost like a Zacchaeus, I guess: "What I have taken wrongly, I will return fourfold," or something like that. The scowler said: "Oh, my goodness. Years ago my family used to visit your grandfather's family socially — not because we had to but because we liked to, we wanted to, we cared about each other and respected each other. What has happened to me?" The so-called scowler became transformed and became an earnest advocate for aboriginal affairs.

           I think it's all at a very human level. Of course there's a temptation of: "You've got something I want. I'll try to be nice to you and weasel it out of you." That's

[ Page 390 ]

a potential threat. But I think there's a lot of genuine synergy all over the province. I really do.

           G. Trumper: Thank you for your presentation. I just have a question to ask which has really nothing to do with this. Is this Indigenous Business Magazine national?

           D. MacKenzie: Yes, ma'am. We are a national aboriginal publication. We were at the Assembly of First Nations Nexus in Halifax in July. We're new, we're young, we're struggling, and we need help, but we certainly feel that the need for…. Our core mandate is to reference mutually beneficial interactions between aboriginal and non-aboriginal entities. So we're here to try to help.

[1940]

           G. Trumper: The reason I ask that is because just recently a friend of mine received an aboriginal award in one of the aboriginal business magazines. I just wondered if it was yours. They recognize those who are doing well and have done well in business. I'm just curious.

           D. MacKenzie: I'm going to stay until the end of the evening, and I brought enough copies for anybody who wants one. I'll just boast that this is my cover girl. She's Dr. Charlotte Coté, Nuu-chah-nulth, who picked up a PhD degree at UC Berkeley earlier this year. Her area of expertise is ethnic studies. She did her doctoral dissertation on the cultural whaling practices of the Makah and Nuu-chah-nulth, was aggressively recruited by UVic but is settling in very nicely, thank you, at a university in Seattle, where she becomes a professor in January '02. We've got lots of stories like that.

           V. Anderson: Perhaps I could tell a story. There's a National Film Board film, an old one, about 30 years old now. Duke Redbird was in that when he was a young person. It's in Alberta, a group of aboriginal people together. The film begins with: "The Indian agent is always saying that we can become something. He's never saying that we are something." I hope, in your earlier story, that we have reversed that.

           D. MacKenzie: You could have said that before I started, and you wouldn't have had to endure my complex prose. I like that. I really do like that.

           D. MacKay: Donald, I can't let this go. We've heard presentations from all over the province. We've heard from a number of people about some of the bad things that happened since the colonization of Canada by the European settlers and some of the pitfalls and terrible things that have happened to our native population. I'm really having trouble accepting your comment in the paper here where you said that smallpox was deliberately used against aboriginals. I'm just amazed that you would say that. I can't say any more.

           D. MacKenzie: May I respond to that?

           J. Les (Chair): Please do.

           D. MacKenzie: I want to be as authentically honest in this area as I can. I'm going to begin by saying that I can't sit here right now and tell you that I know absolutely, beyond the slightest shadow of a doubt, that that is objectively true. I will tell you that I was in conversation with a friend of mine earlier today who's involved with the Native Investment and Trade Association. They're a very responsive organization; they do many conferences and so on. We were talking about it. If I am not mistaken, yes, as horrible as it is to contemplate, to some extent it did happen in this area.

           Not only that, but I believe there is an objective historical record of something agonizingly similar happening a considerable distance east of here — I believe it was on the north shore of Lake Erie and/or Lake Ontario — where aboriginal people were actually given gift boxes. It was quite deliberate. When they took them home and opened them…. It's kind of like some of these envelopes we've been hearing about in the last while.

           I totally agree with you, sir. It's virtually too horrible to contemplate. I'm not going to leave this table claiming that I know absolutely for certain, beyond the slightest shadow of a doubt, that it is true. I'm sitting here believing that unfortunately, yes, it is true, or else I would not have had it in my document.

           D. MacKay: Well, I find it personally offensive to think that my grandfathers and my great-grandfathers would have done something as deliberate as what you're suggesting in your paper. I just find it offensive. I just want to leave it at that.

           D. MacKenzie: Fair enough.

           J. Les (Chair): Thank you, Donald.

           Our next presenter is Paul George. How are you tonight?

           P. George: Pretty good. A little wet. It's raining out.

           J. Les (Chair): Not here.

[1945]

           P. George: No, it's very dry in here.

           Thank you very much for hearing my colleague yesterday, Joe Foy. This is a new brief, a different one. We each took a different swing at this. So here goes.

           If there ever was a way to foment discord, scare off business and destabilize the province of British Columbia, it is to hold a provincewide referendum on a sensitive and constitutional issue of fundamental justice. Such is the quest you have embarked upon through these public hearings: to come up with a question or questions regarding treaty negotiations to put to public referendum in B.C. We do not have to look too far away to see what devilry referendums on constitutional issues can do, the case in point being Quebec. In

[ Page 391 ]

Quebec it is clear what the provincial government was after in the referendum process, for no matter how sugar-coated, mumbo-jumboed and obscurely worded the referendums were, the citizens knew what their vote meant. Vote one way, and you were voting to eventually secede from Canada and set up a separate sovereign nation. Vote the other way, and you were voting to stay in the Canadian confederation.

           Regarding the wording of the referendum on treaty negotiations with first nations in B.C., I contend that no matter what wording of the question is put to the public test, citizens will figure out what their vote really means. To vote one way will be a vote to be favourably disposed to B.C. aboriginal peoples' rights, and to vote the other way would be to be unfavourably disposed to the rights of aboriginal peoples of B.C. No matter how hard one tries, I believe it is impossible to come up with wording for a referendum question that does not reduce to the simple and morally archaic dichotomy explained above.

           For illustrative purposes, consider the following sample question, one that appears to be totally benign: "Do you believe that treaty negotiation outcomes should provide sufficient land and resources to the aboriginal people of B.C. so they can be self-supporting, run their own affairs and enjoy the same standard of living as non-aboriginal citizens do in B.C. — yes or no?" Hopefully, most people would mark yes, but would you really want to put that to the test of a provincewide vote? Would it really be useful to the government of B.C. to find out in which electoral districts of the province what percentage of people do not believe we should right the historic injustices done to aboriginal people that continue today?

           I could go on with different example questions. However, my point is clear: there is no such thing as a neutral question on this issue. In every potential question that could be posed, it becomes obvious what response would be favourable or unfavourable to first nations, their aspirations and the realization and actualization of their constitutionally enshrined rights.

           Back to the Quebec referendums. At least there the horse came before the cart. There was a popular separatist movement and a government elected by that movement from which the referendum question arose. Here in B.C. we have no horse, and we are looking for a cart. The search for a referendum question is devoid of a movement that is seeking some radical change in public policy. So without a good reason to have one — except to fulfil a rash promise made during the last election — to hold such a referendum is beyond foolishness. It will only cost the taxpayers lots of money, exacerbate an already difficult situation and quite possibly make the situation much worse.

           As a province we simply cannot afford to undertake actions that fan the flames of racial hatred and give a small group of racists a chance to soapbox their views. This referendum affair has already had negative impacts by slowing down the treaty process. With every delay it gets harder to justly settle with first nations, as more and more resources are removed from untreatied traditional lands, more land-use licences are handed out, and more Crown lands are alienated by the B.C. government. The biggest lesson that we can take away from the Quebec referendum experience is just how bad for business such politically manufactured uncertainty can be. Therefore, despite the fact that your standing committee may not have the mandate or option to decide whether or not to hold this referendum, I believe you should recommend not holding one.

           This is not to say that the current treaty process is adequate and does not need to be improved. Nothing could be further from the truth. Governments need to be more generous in what is being offered and more flexible in coming up with solutions for different first nations that have different traditional governments and differing aspirations.

[1950]

           Finally, the B.C. government must move quickly to reach settlement and, in the meantime, enter into interim agreements where first nations have a right to a say in what developments proceed while the negotiation process is underway.

           Resolution of this globally embarrassing situation requires visionary statesmanship. Please exercise it.

           J. Les (Chair): Thank you, Paul.

           Questions? We can't let him get off scot-free. Come on.

           V. Anderson: Let me take a try at it. Thanks, Paul. I appreciate the concern. It's very important that the concern should be highlighted and the importance of it raised.

           Having said that, from your experience, having been involved in the area and the concern for a long time, what would be your feeling — apart from the referendum at this point — as to what would be the most significant area in which to move to improve the treaty process? At the moment, we find all sides saying it isn't working exactly as it should be. Have you a suggestion, from where you stand, about why it's not working as it should be? Where are the weaknesses that we have learned over the last eight years?

           P. George: They are two worlds apart. What first nations expect out of it and what the governments are willing to offer is quite far apart. Like with any kind of negotiations, when you're so far apart on your fundamental positions, it's difficult to come to resolution.

           I believe, personally, that the amount of land being offered to first nations as their treaty lands is too small and should be greatly expanded. I beg to differ with the COFI representative. I really believe that we should manage our forests and nature in such a way that we can hunt everywhere. I believe they should modify their forest-cutting plans in doing so. I believe it's a huge hard sell to get first nations to say: "We're just going to have aboriginal rights on our treaty lands, which will be basically expanded reserves, and you can do whatever you want to with the rest of it." I don't know any first nations people I've worked with that would take a position like that. That's pie-in-the-sky

[ Page 392 ]

stuff. That's just outer space. That's the kind of stuff that causes difficulty.

           I got extremely angry about Treaty 8. Treaty 8 also has the rights to trap in there, and there's nothing more difficult to do than to exercise a trapping right after the place has been clearcut. There are no animals to trap there, and there's all kinds of biological proof of that. That's my field; it's biology. They have that. That treaty was written — not like what she said…. This was one of the last treaties that was written by a person who was sympathetic to first nations and who tried to make it absolutely clear. The right to trap is not fettered or anything. They have a right to trap. You don't have a right to go and ruin somebody's trapline and their livelihood by your clearcutting.

           I happen to stand on the side of the first nations on this, and I think that somehow you're going to have to be more generous. COFI and all these big multinationals that now run our forest industry are going to have to give up a little bit to get the kind of justice we need, where the first nations do have enough land and resources and enough to be self-sufficient.

           V. Anderson: Can I follow up on that?

           P. George: Yes.

           V. Anderson: I come from a small town in Saskatchewan and a rural farming community where we consistently had not a rich living, but we could survive. What it led to was that with the economy that was there, the present generation could survive but the young people had to move away because there was no economy for them to come into.

           Do we have a similar situation here with our aboriginals, which are rural communities — that even if they maintain the hunting and fishing upon which the present generation of parents can survive, unless something new comes into being so that there's new industry or new undertakings, the young people will not be able to survive and will be forced to move away?

[1955]

           Is there a way that we can move to help that process so young people don't have to move away or they have other alternatives? What I'm asking is: are we able to maintain both the present and the upcoming generations? If you're aware, the children of the aboriginal people outnumber the adults.

           P. George: I understand your question, and it is a serious concern and problem. However, unlike the right to pre-empt land and to get enough to at least have the last generation…. The first nations people were denied that right, at least in B.C., so they couldn't get land. They were confined to small reserves. But going along with those reserves, they were promised the right to carry on their basically subsistence way of life, which was mainly fishing on the coast. At that time, there was a lot of salmon, a lot of fish. There was a lot of game. There wasn't a huge uprising then, because people thought as long as that was guaranteed….

           I think that in the long run, we're all in trouble if the populations keep expanding, because the resources on the earth are limited. There is so much that can be done in the city, but I believe that by properly managing resources, we could have more people living rurally than we do now, both native and non-native. There is a carrying capacity limit, and we all have to respect that or nature takes it into her own hands for us.

           J. Les (Chair): It seems to me, Paul, that we often get into this discussion that there needs to be adequate land for a particular first nation to be able to live sustainably within that community. There's almost an assumption that goes along with that — that is where those people must remain. Yet you and I and many others freely move about, and we live in Saskatchewan or British Columbia or Prince Rupert or wherever you wish, to your heart's content.

           P. George: That's why we're non-aboriginal. I didn't make that choice. My grandparents made it from Germany, etc.

           J. Les (Chair): That's correct, but the point I'm trying to make is: are we not perhaps being somewhat arrogant, for lack of a better word, by assuming that a first nations person living in northern British Columbia will always want to live there?

           P. George: They can make that choice, but being aboriginal means that you're committed to that land, that you take care of that land, and that you know your children's children are going to live off that land. If you are connected to a sustainable society, these places have enough resources, like food supplies, to provide the basis for living.

           You're asking me to become a non-aboriginal. I don't know. That's been offered. Chrétien tried it. He said: "Okay, let's just do away with aboriginal rights. Let's have them assimilate. We'll all be one big happy melting pot of a family."

           J. Les (Chair): You're putting words in my mouth now.

           P. George: No, no. I'm not saying you're saying that, but Chrétien did, when he was Minister of Aboriginal Affairs. That bombed out pretty badly in Canada. That was happening just when I first became an immigrant to Canada.

           J. Les (Chair): It has been suggested, in front of this committee, as well, that when we grant treaty rights or when treaty rights are fully assumed — let's put it that way — those are fully exercisable in that particular territory. When an aboriginal person moves to an urban area, let's say Vancouver, those rights don't necessarily follow to quite the same degree. As we all know, there is a major trend towards urbanization of aboriginal people. It's one of the things….

[ Page 393 ]

           P. George: That's because they're denied access to the resources around them. They're living on a reserve here, and it's being completely clearcut around there. The oil and gas industry is pumping out their resources, and they have token employment in it.

           J. Les (Chair): We don't want to be too myopic, because the process of urbanization is a worldwide phenomenon.

           P. George: The process of destruction of the outlying natural world is ongoing. It's driving people into Rio de Janeiro in Brazil and everywhere, because they can no longer subsist on the lands where they once were.

           I think that the salmon resource is going down the tubes here. You can just look at the Nuu-chah-nulth thing, how many salmon-fishing boats there used to be and everything. That's a whole huge other problem.

           J. Les (Chair): Yeah. We are getting into another area of debate.

           P. George: Yes. I don't want to do that.

           J. Les (Chair): Any further questions of Paul? If not, thank you very much for coming.

           The next presenter is Craig Vance.

[2000]

           C. Vance: Mr. Chairman, ladies and gentlemen, I'm representing the Anglican diocese of New Westminster, which is the Anglican Church in the lower mainland, from Hope to the village of Gwa'yi on Kingcome Inlet, a Kwakwaka'wakw village which I had the privilege of living in this past summer.

           We're also at the disadvantage that we are striking a task force to advise us what our church's position is going to be on the impending and presumed referendum, so I'm essentially trying to speak pre-emptively, before we've come to an official position. Your time line and ours aren't overlapping, so I want to make a few preliminary comments.

           One is that the Anglican Church and other churches, particularly the main-line churches in Canada, have a historic relationship with first nations people which is very strong and very long. It also means that we have walked in that path as Canadians with a very mixed experience, as we all know. The Anglican Church has a very strong relationship with the Nisga'a people. We have very, very strong relationships with a number of Kwakwaka'wakw villages on the coast. Out of that relationship, I can say there is a very strong and growing sense within the churches that we want to be very involved in this question and the public debate on it.

           The recent meeting regionally of a group called Kairos, which is the interchurch coalitions on social justice issues, which represents the PLURA churches — Presbyterian, Lutheran, United, Roman Catholic and Anglican, as well as Mennonite Central Committee and Christian Reformed Church and several others — drafted a letter which they sent to the Premier just two weeks ago. I'll read it, just for the record, because I don't have a written brief.

"Dear Premier Campbell:           
           "The B.C. region of Kairos, an ecumenical coalition concerned with social justice in Canada and around the world, wishes to express, in the strongest terms, our concern over your government's proposed referendum on the principles of treaty-making. We commend your decision to discontinue the legal challenge to the Nisga'a treaty and urge you to likewise withdraw the proposed referendum.

           "We note, with particular alarm, that first nations — people most affected by the referendum — are refusing to participate in it. It is our opinion that to unilaterally propose changes to the fundamental principles of treaty-making ten years into the process is profoundly wrong.

           "We must also stress that given present global realities, it is imperative that leaders and governments pursue avenues of reconciliation rather than polarization. There is no doubt that the proposed referendum will lead to heightened polarization of the citizens of B.C. and this to continued and increased economic and social uncertainty.

           "In conclusion, we urge your government to revitalize the process of negotiating honourable settlements with first nations through existing and alternative, more reconciliatory models of treaty-making. Our thoughts and prayers for peace are with you.

           "Yours respectfully,"

and then the signatures.

           I can say very clearly, as a preliminary position, that my church and, I believe, other churches would be urging you, if there is a way, to take the referendum off the agenda and find another means of revitalizing the treaty process. It is our fear that it will lead to polarization — that you have the perhaps potentially painful process of asking a majority to vote on what should be the rights of a minority. From having lived with first nations people a little bit — as many of us have relationships with first nations people — the prospect of the potential pain that they could go through in a referendum is very great.

           I have heard the arguments in favour of the referenda in terms of giving citizens a vote in something that will affect their future very, very strongly. I would urge you to consider finding some means for public input other than a referendum, which is, of all the tools that the state could offer, one of the bluntest, the one that allows for the least nuance.

[2005]

           In our parliamentary system, I have the advantage of being able to speak to you as a group of legislators. In our system, we have delegated powers to you, believing that you will use the intelligence that God has given you, the natural sense of justice that I believe we all possess, to seek justice for first nations people and with first nations people.

           At this point, I can only urge you to consider means that would revitalize the treaty process without having to go to referendum. As I said, the Anglican Church will reserve the possibility of perhaps putting in written submissions later and perhaps meeting with you individually as we formulate a more detailed and

[ Page 394 ]

nuanced position, but this is something I can say is an early position that we hold to.

           J. Les (Chair): Well, Craig, as you go through the process of formulating that ultimate position, one thing perhaps you can bring to the discussion very clearly is the notion that this is not a discussion about aboriginal rights. That is not on the table.

           We have said consistently from the very beginning that we absolutely recognize what the constitution has to say about aboriginal rights. It perplexes me sometimes when we keep hearing from that side of the table that this is about aboriginal rights. It clearly is not. We recognize what those rights are. It is how we set about the process of incorporating those rights into the mosaic of British Columbia.

           C. Vance: My fear — and I have heard that and have seen that — is that those nuances will be lost on the population. You're trying to draft wording. As I've said, my fear is that a referendum is simply too blunt an instrument to get at all the subtleties of Delgamuukw and all of that incredibly complicated process. I don't think a referendum is the way to do that.

           J. Les (Chair): The other notion is that many things should be vigorously debated and perhaps voted upon in the most open and democratic way possible, and yet when it comes to something that is admittedly difficult, sensitive and complex, we should step back from that vigorous public debate. On a subject like this, people are more prone than ever to say: "You're the government. You do it." Is that appropriate?

           C. Vance: The position of the first nations — and I can't speak for them, but they've said it themselves loudly — is that the relationship is a nation-to-nation relationship. From the very first process, going right back to the Royal Proclamation, it has been a relationship of first nations people entering into negotiations with the Crown.

           I do believe personally — I can't speak for the church — that there should be some possibility for the public to also enter into that debate. Again, though I'm getting a little bit repetitive here, I don't think a referendum has the subtlety of getting at something as profound as treaty rights. I believe many other people are going to feel the same way.

           J. Les (Chair): If you get something that has within it that level of profundity, it seems to me that it does need to be well understood by the general public, if the government is expected to act on behalf of that public and produce those profound results.

           C. Vance: One of the three principles that guided historic Anglicanism was a commitment to tradition, scripture and reason. Certainly, something that is educational and that allows the public to understand those complexities…. It's not education I'm concerned with. It is about — I think I've said this before — the process of an election or of a referendum trying to come to a majority vote around something as incredibly complex as aboriginal title and treaties.

           P. Nettleton (Deputy Chair): Just a comment, Craig. I enjoyed your presentation.

           One of the things that has surprised me over the course of the past few days and weeks is that we've had a number of men and women of faith who have spoken of their fears. You've used the word "fear" probably half a dozen times in your submission, and that concerns me.

           I believe we need men and women of faith to move forward. We see this as a means, in fact, to do just that: to move forward into a forum and engage British Columbians. I'm convinced that your fears will not be realized — and I'd be interested in having this discussion sometime after the referendum — but that this will, in fact, be an important step forward. It's just a comment as much as anything, but thanks for your presentation.

[2010]

           V. Anderson: You're not the first one who has come with this kind of concern. I think I asked other people the same thing. I'm following up what was said earlier. With the clear understanding that aboriginal treaties will go ahead and that, as they go ahead, to implement them…. Once we have signed them on the dotted line, the crucial test is: are they going to be accepted by the people of the community who must implement them as neighbour to neighbour? It's in that relationship. If they are created without acceptance, then the fear, on the other hand, is that the negative backlash will be destructive of the reality that should take place. If there is fear that there could be that negative backlash, is it not better to find a way to deal with that prior to that having taken place? This is partly, if you want to look at it from that point of view, to find out whether that fear is founded or not. Many of us don't think that that fear is well-founded, but even if it is well-founded, it's better to discover it earlier, and to cure the disease, than later.

           C. Vance: I'm hesitant to do this in a public forum, but I'll refer to a scripture. "Perfect love casts out all fear." My fear is related in…. I don't know how much love is present. Even having said that, there's a theological principle that love has to be translated into justice in the public sphere. In order to do justice, we want to see a process that's going to lead towards reconciliation. The fear which I probably mentioned a half dozen times is related to a process that won't lead to reconciliation. There are many of us, not just in the church but in your roles as well…. We all believe that our elected people are working for reconciliation. You are some of the few people who hear, I think, very loudly, all of the perspectives on all of the issues.

           From the position of the church at this very early position, we would urge you to consider paths that would work towards reconciliation between first nations and non–first nations. The concern — not to use the word "fear" again; oh am I going to say it again? — is that a referendum could be a very divisive tool and

[ Page 395 ]

not lead to reconciliation. If there is fear, that's where it springs from.

           V. Anderson: I have just a final comment. I think what you have expressed quite clearly and what has come out — others haven't expressed it quite as clearly, and it's something that we probably need to hear — is that it's not the referendum that people are really fearing, although that's the term they are using. They have a fear that the aim of the government is not to reconcile, rather than to reconcile. That's where I think we would have a difference of opinion.

           C. Vance: I'm not imputing anything to the government in this presentation. I'm simply stating the very preliminary position of the Anglican Church regarding the referendum.

           V. Anderson: I've drawn my own conclusions.

           J. Les (Chair): Thank you very much for joining us this evening.

           At this point, I only have one further speaker on the speakers list. That is the Canadian Federation of Students, who were to be here at 8:30 this evening. So if it's agreeable to everyone, we will simply recess until 8:30 and see if that party arrives.

           The committee recessed from 8:14 p.m. to 8:30 p.m.

              [J. Les in the chair.]

           J. Les (Chair): It would appear that our 8:30 delegation is not arriving or hasn't arrived. Therefore, I will adjourn this meeting, and we will reconvene on Wednesday next week in Prince George.

           The committee adjourned at 8:30 p.m.

[ Return to: Aboriginal Affairs Committee Home Page ]

Copyright © 2001: British Columbia Hansard Services, Victoria, British Columbia, Canada