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

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

Unavoidably Absent: Paul Nettleton, MLA (Deputy Chair); Bill Belsey, MLA; Dave Chutter, MLA

1. The Chair called the Committee to order at 9:03 a.m.

2. Opening remarks made by John Les, MLA, Chair, Select Standing Committee on Aboriginal Affairs.

3. The following witnesses appeared before the Committee and answered questions:
    · Casey Timmermans
    · Stuart Wright
    · Anne Spilker, Action for Diversity Team
    · Gary Korpan, Mayor, City of Nanaimo
    · Joy Newall, South Island Regional Advisory Committee
    · Erik Andersen
    · Reed Elley, Member of Parliament, Nanaimo-Cowichan
    · Jim Manly, Mid Island Chapter, Council of Canadians
    · Bart Jessup
    · Jacinthe Eastick
    · Diane Brown, Mid Island Chapter, Council of Canadians
    · Randy Young, Gabriola Residents and Ratepayers Association
    · Cynthia Hemsworth, President, Gabriola Residents and Ratepayers Association
    · Clarence Dennis
    · Lee-Anne Dore
    · Bruce Ferguson, Director Zone 5, United Native Nations Society

4. The Committee adjourned to the call of the Chair at 12 noon.

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, NOVEMBER 1, 2001

Issue No. 16

ISSN 1499-4151

[ Page 491 ]

THURSDAY, NOVEMBER 1, 2001

           The committee met at 9:03 a.m.

              [J. Les in the chair.]

           J. Les (Chair): Good morning, everyone. Everybody's got their coffee, and we're ready to go. My name is John Les. I'm the Chair of the Select Standing Committee on Aboriginal Affairs. My riding is Chilliwack-Sumas. Before the other members introduce themselves, I'd like to make just a few comments about the committee and the work that it's been asked to do by the Legislative Assembly.

           We were established in late August by the Legislature to examine, inquire into and make recommendations with respect to all matters and issues concerning questions which the government of B.C. 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 treaty negotiations through a one-time provincewide referendum, while ensuring that constitutionally protected aboriginal rights and title are respected.

           Our terms of reference and other information about the legislative committee process are available at the information table over there to my left. We're more than eager to hear views from a range of British Columbians. As a matter of fact, over the last four or five weeks we have heard quite a range of viewpoints from British Columbians from the north all the way to the south and east to west. We hope to build interest and support for the treaty process. To this end, we have publicized our hearing process and called for written submissions throughout the province, and we will be accepting written submissions until tomorrow, November 2.

[0905]

           We have a very full agenda today here in Nanaimo. We will be meeting until 12 noon today. We have speakers lined up every 15 minutes, so you will recognize that it's incumbent on me to keep this meeting moving along and to keep everybody to their allotted 15-minute time frame.

           C. Dennis: Can I speak? It's going to be very short, and it's said in a respectful way and in a good way. Part of your mandate is to hear from all British Columbians. That's the rumour I heard. I'm not sure if that's true or not. I would respectfully and in a good way ask that time be allotted for some response to what has been said from all of us. We're all British Columbians. We're all rowing in the same canoe. We're all going in the same direction. I would really like to see this done in a democratic fashion rather than where it has to be seen to be democratic, not engineered. Thank you.

           J. Les (Chair): Okay, Mr. Dennis. Thank you for making that point. As I was explaining before you spoke, we will only be meeting here until 12 o'clock today. We resume our hearings today at 1:30 p.m. in Port Alberni, so please recognize that we are under significant time constraints. We have attempted to make every opportunity available for people to provide input, specifically the written submissions that I referred to earlier, which are still being received by the Clerk of Committees in Victoria.

           The hearings today will be recorded and transcribed by Hansard staff. I would ask you to be sure that if you do have anything to say one way or the other, you come to the witness table in front of the committee here so that your comments can be recorded. The transcripts of the proceedings are going to be available on the committee's website, which is www.leg.bc.ca/cmt, for those of you who might be interested. Following the hearings the committee will prepare a report of its observations and recommendations. That report will be tabled in the Legislative Assembly. If the House is not in session, it will be filed with the Clerk by November 30, and the report at that point will be a public document.

           I'd now like to ask the other committee members to introduce themselves, starting with Blair Lekstrom.

           B. Lekstrom: Good morning. My name is Blair Lekstrom. I'm the MLA for Peace River South, and Dawson Creek in the northeast part of our province is my home.

           D. MacKay: Good morning. First of all, I'd like to thank all of you for coming out. My name is Dennis MacKay. I'm the MLA for Bulkley Valley–Stikine, and I live in Smithers.

           M. Hunter: Good morning. I'm Mike Hunter. I'm the MLA for Nanaimo. I'm pleased to welcome all of you constituents and the committee to our home. Thank you.

           G. Trumper: I'm Gillian Trumper. I'm the MLA for Alberni-Qualicum.

           V. Anderson: Good morning. My name is Val Anderson. I'm from Vancouver-Langara, south Vancouver.

           J. Les (Chair): And to my left.

           K. Ryan-Lloyd: My name is Kate Ryan-Lloyd, and I'm the Clerk to the committee.

           J. Les (Chair): Great.

           A Voice: A point of information, please. Will there be time for very brief comments on the points made?

           J. Les (Chair): As I explained earlier, we have a full speakers list for this morning. We have a speaker lined up every 15 minutes. My strong suspicion is that that will not allow an interactive process between the committee and the audience this morning. However, if there is time to do that, we of course will be happy to accommodate that.

           C. Dennis: A point of order, please, Mr. Chairman.

[ Page 492 ]

           J. Les (Chair): No. I'm not taking any.

           C. Dennis: A point of order on your mandate. You're not following your mandate, and that was to get feedback from us, not to engineer speakers.

           J. Les (Chair): Clarence, would you please be seated.

           C. Dennis: Democracy, please. We're in Canada.

           J. Les (Chair): Our first presenter this morning is Casey Timmermans.

[0910]

Presentations

           C. Timmermans: I'd like to thank the committee for the opportunity to speak to them. You have a written submission of what I'll be reading.

           For the sake of our children and for their peaceful future co-existence, I believe that principles entrenched in our constitution should not create inequality before the law. This is because inequalities violate an innate principle embedded in our natures. People haven't accepted this in the past, and it has been one of the primary causes for revolutions.

           Here in British Columbia, through the work of this committee, we have an important opportunity to take steps that will lead to equality between our native and non-native peoples. We have an opportunity to revise the treaty negotiations process so that we can achieve settlements that will be fair and viable, agreements that will enable native people to become self-sufficient and thus equal to non-native citizens.

           The following thoughts and principles are relevant in achieving a state acceptable to citizens. No society is without problems, but these proven principles will be important in achieving an acceptable solution — namely, the inclusion of private property settlements for individual natives in the eventually signed treaties.

           The key importance of owning private property in the well-being of individuals and societies is very well described in a recently published book by Peruvian economist Hernando de Soto, titled The Mystery of Capital. This book was written to help the Third World lift itself out of poverty, so I believe it also could be applied to our B.C. first nations.

           I will be providing the committee with some copies of this book — there are three copies there — which I hope will be read and then passed on to the Legislative Library and to the First Nations Summit.

           Meanwhile, here are some of the relevant excerpts from the book, The Mystery of Capital, by Hernando de Soto. From page 195:

           "Widespread legal property will even help solve one of their loudest and most persistent complaints about the expanding urban poor — the need for more 'law and order.' Civil society in market economies is not simply due to greater prosperity. The right to property also engenders respect for law.

           "As the eminent historian Richard Pipes pointed out in his book about the Russian revolution, private property is arguably the single most important institution of social and political integration. Ownership of property creates a commitment to the political and legal order, since the latter guarantees property rights. It makes the citizen into a co-sovereign, as it were. As such, property is the principal vehicle for inculcating in the mass of the population respect for law and an interest in the preservation of the status quo. Historical evidence indicates that societies with a widespread distribution of property, notably in land and residential housing, are more conservative and stabler and, for that reason, more resilient to upheavals of all sorts."

           From page 196:           

           "When the poor people have confidence that their land and businesses are legally theirs, their respect for other people's property increases."

           From page 197:

           "Legalizing property is hardly charity for the poor. Creating an orderly market that makes owners accountable and gives their homes clear titles, worthy of financing will generate an expanding market, encourage law and order, and put money into the pockets of the elite."

In other words, when individuals own property, they are in a better position to get financing from banks for whatever business venture they may want to pursue.

           From page 205:

           "Only true political leadership can coax the law of property out of its preoccupation with the past and into an appreciation of the present, from being much too impressed with technology to becoming concerned with the good of society. Politicians are needed because existing institutions are inclined to favour and protect the status quo.

           "The goal of property reform is to award property rights for millions of assets to millions of people in a short time.

           "For the legal sector, they must explain that the proposed reforms will not hurt legitimate and enforceable rights and that there will be aggregate gains for all interest groups.

           "Creating a property system that is accessible to all is primarily a political job.

           "The goal of formal property is to put capital in the hands of the whole nation."

           From page 227:

           "1. The situation and potential of the poor need to be better documented.

           "2. All people are capable of saving.

           "3. What the poor are missing are the legally integrated property systems that can convert their work and savings into capital.

           "4. Civil disobedience and the mafias of today are not marginal phenomena but the result of people marching by the billions from life organized on a small scale to life on the big scale.

           "5. In this context, the poor are not the problem but the solution.

           "6. Implementing a property system that creates capital is a political challenge because it involves getting in touch with people, grasping the social contract and overhauling the legal system."

[0915]

           My comment. It is elitist not to respect the individual native and his right to manage his own life. Not to do so is a sign of disrespect. The same could be said in the parental context of respecting one's children's

[ Page 493 ]

rights and ability to become independent citizens. It is our responsibility to cut the apron strings. We do it gently, with love and attention coupled with training, to achieve this as best as possible.

           On page 228 de Soto says:

           "I love being from the Third World because it represents such a marvellous challenge, that of making a transition to a market-based capitalist system that respects people's desires and beliefs. When capital is a success story not only in the west but everywhere, we can move beyond the limits of the physical world and use our minds to soar into the future."

           My concluding comments. We live in a democracy, and if we embark on the path that I have heard certain lawyers say we must — namely, to adopt Nisga'a-style treaties…. I believe that is a wrong-headed and even dangerous path that fundamentally violates our human nature.

           I would suggest that instead we embark on a real political solution that will work. Let us not be railroaded into a resolution desired by the vested interest groups in the so-called Indian industry. This is something that they have been working on through the courts for some time in their attempt to preserve the status quo of a small elite benefiting from the exploitation of the group. Though that is perceived by many as the constitutionally correct solution, in fact it violates our basic principle of equality before the law by locking natives into a system that is neither fair nor equal nor democratic.

           Though the Nisga'a treaty may have some notable objectives, the fact is that the model is flawed in many, many respects, from the federal government's abdication of its fiduciary responsibility to the top-heavy Lisims government that the province will end up subsidizing heavily through the lack of individual private property that I'm emphasizing here today.

           Simply put, the Nisga'a model is underfunded by Ottawa, which is trying to offload its duties onto the province. It is fundamentally flawed, because it is based on collective rather than individual property ownership. If this model is adopted in other treaties, we will still be arguing about these concerns 100 and 200 years from now. We will only entrench their political elites with power in perpetuity.

           Our democratic process must be used to empower the individual and thereby achieve fair and lasting solutions in sync with our basic natures and values, with sound and proven principles that give closure and finality. We must also accept that we can never achieve ideal solutions here, nor can we fully compensate for wrongs of the past. We must find solutions that give fairness now and in the future.

           I believe treaties including individual property allotments would be readily accepted by the majority of native people and would provide the closure that is wanted by virtually all British Columbians. There may be a few native politicians who might object to this, but mainly only because it would take away from their political power by giving empowerment to the many. As we grasp for answers with some frustration because of the difficulty with vested interests, it might help if we would naturally reach beyond our human understanding to see if there are spiritual answers too.

           It was my privilege to meet the distinguished B.C. civil servant and author Mel Smith a year or so before he passed away. He was an individual who I believe had some insight into this question. I sensed a love for his fellow man. I detected in him a deep love and respect for his God, which perhaps gave him the extra discernment. He was definitely outspoken about his constitutional perspective and published his views in several well-received though controversial books, which I hope this committee also will make itself familiar with. Despite resistance, he reminded us that the fiduciary responsibility for native affairs lies solely with the federal government. This is one of the constitutional realities of this issue that too many people are too quick to forget.

           We also could benefit from considering what God's view would be on the collectivism-versus-individualism question when it comes to distributing land and money. In the Bible, in Numbers 26, verses 52 to 56, God makes it clear that the land should be divided by lots — parcels distributed at random equally to families within the 12 tribes of Israel when they occupy the promised land.

           God does not say that land should be given to the tribes collectively but to the individual families within tribes. In modern-day British Columbia that would mean families and individuals amongst the natives would get the treaty settlements — not the collectives. Clearly, individual private property, ownership of property, is the mode that God favours and not collectivist or communal ownership.

           The parable of the talents teaches us much the same message. It is up to the individual to make material progress, not the group, though the nations also do have collective obligations on them and will receive collective blessings and cursings.

[0920]

           Finally, what questions should be asked in the referendum? I believe at least one of the questions should address the mode of settlement — namely, whether the land should be allocated to individuals or collectives or perhaps to some combination that limits the collective portion to small amounts sufficient to support municipal-style governments. I believe the ideal outcome of treaty negotiations would be where individual natives emerge with fee simple properties and property rights indistinguishable from what other Canadians now enjoy.

           I thank the committee for the opportunity to present my thoughts. I wish you well in your deliberations.

           J. Les (Chair): Thank you very much. I have time for one question.

           I don't think we have any questions at all, Casey. Thank you very much for making your presentation.

           C. Dennis: I have a question. Can we ask him a question?

[ Page 494 ]

           J. Les (Chair): No, you cannot.

           C. Dennis: Well, thanks for the democracy.

           J. Les (Chair): The next presenter is Stuart Wright.

           S. Wright: Mr. Chairman and members of the select standing committee, I'm Stuart Wright, living in Nanaimo.

           J. Les (Chair): I would like to say this. Could we keep the conversations down, please. Let's have everybody able to understand and hear the speaker. Thank you.

           A Voice: Excuse me. I'd like to say something about the acoustics. I get about one out of every four words back here. It may be better to let the speaker go to where you are and speak. If he has a good speaking voice, everyone will hear clearly.

           J. Les (Chair): I take your point. We're not going to be able to change the way the room is laid out.

           A Voice: But you hear my point — if the speaker doesn't use the mike and goes to where you are.

           J. Les (Chair): Right.

           Carry on, Mr. Wright.

           S. Wright: In submitting this paper, first may reference be made to two books which have been found to present extremely well-documented facts and, as well, findings which should be of paramount concern to all Canadians.

           The first book is Our Home or Native Land by Melvin H. Smith, QC. Melvin Smith, recently deceased, served for 31 years in the public service of British Columbia and was the ranking official on constitutional law for four successive provincial administrations. In the preface the author states, in part:

           "Most of all this book is a wakeup call to all Canadians. I can state categorically that if the Canadian public knew what was going on, most would be appalled. The whole process is driven by the unrelenting efforts of what has been called the Indian industry, the national native industry: the many lawyers, consultants, advisers and academics, all government funded, who would keep it going in perpetuity.

           "This book will anger some readers. Some will condemn it. Others will reject it and incorrectly brand the author as racist — an ironical condemnation from those who perpetuate and advocate a system premised solely on race and ethnicity.

           "Those who respond in this way will have missed the point. For this book is not anti-native, quite the reverse. In calling for an end to more than 125 years of flawed and failed government policy, it holds out the prospect of removing the shackles of government dependency caused by discriminating against people because of their race, replacing it with individual opportunity, self-reliance and success and national unity in place of fragmentation."

           The second book is First Nations? Second Thoughts by Tom Flanagan. He is a professor of political science at the University of Calgary. Alan Cairns, faculty of law at the University of British Columbia, has said:

           "Flanagan's arguments are, without question, the most thoughtful and comprehensive of the critiques of aboriginal policy that have been offered so far…. His views are controversial and, whether or not you agree with him, there is a clear need for his arguments to be publicly available and debated.

           "In First Nations? Second Thoughts Flanagan combines conceptual analysis with historical and empirical information to show that the aboriginal orthodoxy is both unworkable and ultimately destructive to the people it is supposed to help."

[0925]

           The task of the select standing committee to frame a question or questions for a referendum on aboriginal affairs is indeed a formidable one: to resolve problems set in place 134 years ago, recognized by Prime Minister Trudeau in 1969. He said: "We can go on treating the Indians as having a special status. We can go on adding bricks of discrimination around the ghetto in which they live…. Or we can say you're at a crossroads — the time is now to decide whether the Indians will be a race apart in Canada or whether it will be Canadians of full status."

           In this submission it is to be recognized that in large measure the information is taken from Melvin Smith's book and, in lesser measure, from Tom Flanagan's book. On June 29, 1969, a White Paper on Indian policy that was designed to "lead to the full, free and non-discriminatory participation of the Indian people in Canadian society" was presented to the House of Commons by the Minister of Indian Affairs and Northern Development. One author noted that federal policy-makers were caught off guard by the original aboriginal reaction to the White Paper. Aboriginal peoples did not want Ottawa to get out of the aboriginal business. The government withdrew the White Paper in the spring of 1970. The White Paper's $50 million funding initiative to Indian organizations nonetheless went forward. Ironically, although intended to assist the native leadership in implementing the White Paper's proposals, it helped these native groups take their battles for rights to other forums.

           On April 22, 1991, Prime Minister Mulroney announced a royal commission that would deal with the socioeconomic and cultural questions facing aboriginal people. Four of the seven commissioners of the Royal Commission on Aboriginal Peoples were from the aboriginal community. Without question, natives should be entitled to representation on such a body, but with 3 percent of the nation's population, even calculated generously, one has to question whether a body of this makeup can reasonably be expected to bring to its deliberations the impartial judgment expected of a royal commission. Commission reports recommended more programs, including the aboriginal fisheries strategy off the coast of British Columbia, which has proven such a disaster. With its price tag to date of $58 million, this is the most expensive inquiry in Canadian history — that from the Ottawa Citizen, dated October 21, 1994.

[ Page 495 ]

           Questions of aboriginal land claims, ownership, title, self-government, other rights and extinguishment have been the subject of many Supreme Court findings and decisions. Significant among them is the Delgamuukw decision by Allan MacEachern, Chief Justice of the Supreme Court of British Columbia in 1997. The trial lasted 374 days between May 11, 1987, and June 30, 1990. A good part of the trial took place in Smithers in the middle of the territory claim. From figures disclosed under the Access to Information Act, from 1980 to 1992 the government of Canada paid in excess of $12 million to lawyers acting for native bands involved in litigation of various kinds against the B.C. government. It took the Chief Justice almost a year of deliberations before pronouncing judgment and his reasons for judgment in some 394 pages on March 8, 1991. The Delgamuukw case went to the B.C. Court of Appeal and then to the Supreme Court of Canada.

           Of deepening concern to Canadian taxpayers are the fiscal policies relating to the Indian Act and Department of Indian Affairs and Northern Development spending. In 1999 there were 625 Indian bands in Canada with a total status Indian population of 610,000. Seventy percent of the bands had fewer than 1,000 people. Forty-two percent of Indians live off-reserve. Canada spends billions of dollars each year in special programs for status Indians and Inuit. From 1994 to 1995 Indian Affairs was budgeted to spend $5 billion — an 8 percent increase over the previous year — compared to a 2.1 percent spending increase for the federal government overall. In 1975-76 the amount of Indian Affairs budget spent on Indian and Inuit was $587 million, so in 20 years the Department of Indian Affairs and Northern Development budget had gone up 721 percent.

[0930]

           In addition, status Indians are eligible to receive all universal social programs: employment insurance, social assistance and old age security. As Indians they live a relatively tax-free life. They do not pay income tax, provincial sales tax, property tax or GST for transactions which take place on reserves. They receive free medical benefits not covered by provincial medical insurance, such as dental care.

           Increasing Department of Indian Affairs budgets and amounts spent are staggering to the Canadian taxpayer. The question is: what has motivated lawmakers and those in authority to act, by any reasonable assessment, in such an irrational way?

           The criticism is not just that this largesse is extended only to a segment of Canada's population — which, generally calculated, is about 3 percent — but the fact that these policies are based on race. Canadians rightfully abhor racism and are always in the forefront of efforts to stamp it out at home and abroad. Yet these policies and programs are based entirely on race and ethnic origin.

           To the question of the motivating factors pressing upon government that have caused them to produce such bizarre policies, Melvin Smith says that first and foremost, Canadians have allowed themselves to be overwhelmed with a collective sense of guilt over alleged past dealings with native peoples. We should not have allowed ourselves to be thus overwhelmed. The fact is that we can be proud that those who immigrated to this country — and we are all immigrants, even the native peoples — brought with them all that was best of their respective civilizations to establish a society in this country noted for its honest dealings, its compassion, its tolerance and its diligence. The native people share in these bounties, except to the extent that by unwisely singling them out in our 1867 constitution, we relegated them to reserves and began to see and treat them differently.

           Canada's 134-year-old social experiment with native peoples has failed. We tried isolating them, making them completely reliant on government, cutting them off from the economic marketplace, putting bureaucrats in charge of their lives, creating more special government programs and new levels of government to deal with any problems that arose. The author concludes by stating: "To seek to generate a greater degree of self-reliance on the part of the native peoples themselves must be the cornerstone of a new native policy."

           A new policy must be built on two principles: native self-reliance and equality under the law. Such a policy must deal with land claims, federal native programs and self-government. The epilogue in Melvin Smith's book is as follows. In his address to commemorate the fiftieth anniversary of the D-Day invasion, delivered on Juno Beach in Normandy, France, on June 6, 1994, Prime Minister Jean Chrétien said this: "On the beach behind us, Canadians gave their lives so the world would be a better place. In death they were neither anglophones nor francophones, not from the west or the east, not Christians or Jews, not aboriginal peoples or immigrants. They were Canadians."

           My proposal for a referendum would be that the government of British Columbia set in place a new native policy built on the two principles of native self-reliance and equality under the law — a policy that will deal with land claims, federal native programs and self-government, one that will work in the long-term interests of native and non-native Canadians alike and is conducive to Canadian nationhood. Thank you, Mr. Chair.

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

           C. Dennis: Can we have time to ask him a question about…

           J. Les (Chair): No, sir. No.

           C. Dennis: …the racist remarks this gentleman is making?

           J. Les (Chair): The next presenter is Anne Spilker. Is Anne Spilker here?

[0935]

           A. Spilker: Yes, I am. I'll try to be as clear as I can. It's not quite as long, I think.

[ Page 496 ]

           First of all, I would like to recognize that we are on first nations territory and that I feel somewhat uncomfortable being in this setting where it appears that a very white majority is speaking about an issue that I don't think is really ours. However, I also feel it's important that those of us from the dominant culture who support a just and morally correct outcome of the treaty process need to speak out. That's why I'm here. I'm also nervous, so I'm going to try to read slowly.

           I'm really going to address the referendum issue, which is my understanding of why we're here. It's my belief that a referendum regarding the treaty process is both discriminatory and racist as well as confrontational and divisive. I often hear that Canadians wish to see all Canadians treated equally. The truth is that those of the dominant culture live a life of privilege. We mostly need not worry if our kids will learn our language in school or will be able to have a teacher, doctor, dentist or meet a law enforcement officer of their own background. Aboriginal people in this country are one of the most oppressed groups, if one can measure such a thing. It is time for that to change.

           I believe minority rights are not negotiable. It clearly cannot be decided by a majority vote. To have a true democracy, minority rights must be protected from majority interests. In this case, it is overwhelmingly the majority or dominant culture that is not just imposing a structure but also imposing their understanding of the issues on a minority — a minority that has been on this continent for hundreds of generations and has a right to have its claims respected.

           As you are well aware, treaty rights are protected under the constitution. I don't want to say the name because I'm not sure I'm saying it correctly, but the local nation entered the treaty process in 1994. Since this time, relationships have been built. Education about the process within this community is well underway, and some agreements have been made.

           I also want to remind you that the province is only one player in this process, which is not a partisan process but involves members of very diverse backgrounds. I believe that even Bill Vander Zalm in 1990 saw the need for a negotiated agreement with the aboriginal peoples. I believe that by negotiating in good faith, we have a chance to address the injustice done to the first people of this country, an injustice that we have inherited and that we perpetuate daily. It is an opportunity for the dominant culture to take responsibility by addressing these injustices. It is also a chance to create a win-win solution.

           I believe a referendum is a regressive process, not to mention unreliable and difficult to interpret. We only need to think of the clarity bill in Quebec. I'm also reminded of the referendum conducted by This Hour Has 22 Minutes where we were able to vote to change Stockwell Day's name. I believe voters voted 82 percent in favour of doing so. Clearly, such a process is flawed for many reasons. One result of a referendum, I believe, is that it creates winners and losers, and it also sets up a bottom line from which we try to negotiate. True negotiations can't really have a bottom line.

           Another concern is that of cost. I believe a referendum will be costly, and I can't imagine that these hearings are cheap either. We will likely end up paying a lot of money for something that will put us back many years. We know that first nations will fortunately have access to the courts. Yet this is another expensive and drawn-out process.

[0940]

           Finally, I want to come back to the point that a referendum of this kind is racist and adds to the oppression that first nations people have experienced in this country for well over two centuries. I often hear that we brought progress to this continent. I think the truth of the matter is that if it weren't for the help of the first peoples of this continent, the first settlers would not have survived.

           Only recently I learned of another atrocity committed by our forebears here on this island, which took away economic viability from the peoples of the Cowichan Valley in an extremely cruel way. For me, a referendum feels like we are trying to do that all over again. Such an action aims to destroy a people's ability to be their own agents and their efforts to create healthy communities. I believe that such an act is soul-destroying for all of us, not just for first nations people. I think it does something to our beings.

           The question, then, is: what question should be asked? My answer is: no question is the only answer. This referendum is immoral and unjust and a just plain bad idea. It needs to be scrapped.

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

           The next presenter is Mayor Gary Korpan from the city of Nanaimo.

           G. Korpan: Good morning, Chairman Les and members of the Legislative Assembly's Select Standing Committee on Aboriginal Affairs. On behalf of the municipal council and the 80,000 citizens of this city, I welcome you to Nanaimo.

           As I understand it, the committee has been instructed to report to the Legislative Assembly on the form and content of questions that should be used in a provincewide referendum that is intended to define the principles that will guide British Columbia's approach to treaty negotiations. In my comments this morning I will respect the committee's narrow scope. I should make it clear at the outset that I am speaking in my capacity as mayor of the city of Nanaimo. The views I express in this document belong to the city of Nanaimo municipal council, which has been directly elected by the citizens of Nanaimo to serve as the community's governing body.

           Positions. As you know, the governments of Canada and British Columbia, along with the Snuneymuxw first nation, have been involved in the SFN treaty process for several years. In a recent meeting on September 10, 2001, the city of Nanaimo presented four position papers to the Hon. Geoff Plant, Attorney General and Minister Responsible for Treaty Negotiations. The papers expressed in very direct terms the city's key positions that relate specifically to the SFN treaty

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process. The papers outline the city of Nanaimo's demand for inclusion as a full and independent party in the SFN treaty process on the issues directly affecting our community; the city's expectation that all fee simple lands designated as treaty settlement land will remain under the jurisdiction of the municipality; the city's position that it will not consider providing services to land outside the municipality's jurisdiction until an appropriate standard of basic services has been provided to all existing city households; and the city's expectation that any decisions on the future status, management or planning of Newcastle Island provincial park will be approved by the city of Nanaimo electors through the referendum process, reflecting the process as to how that island became a provincial park in the first place. A copy of each position paper is attached to this presentation for the committee's information.

           The first two positions addressed in the papers — that is, the city's involvement in the treaty process and the city's expectation with respect to fee simple lands — apply to all municipalities in British Columbia and fall directly under this committee's mandate. Allow me to elaborate briefly on these two positions as they form the basis of the city's recommendations to the committee, which I will introduce shortly.

           Municipal involvement in treaty negotiations. The recent Community Charter Council Act, Bill 12, introduced by the Hon. Ted Nebbeling, affirms the following views of the provincial government: municipalities are recognized as an independent order of government, municipal governments have authority to determine the public interest of their communities, and the province of British Columbia must respect the needs of municipalities when taking actions that directly and specifically affect municipalities.

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           A municipal government is the principal vehicle through which local citizens collectively determine public policy in areas such as land use, service provision, quality of life and economic development. A municipality's council is directly elected by the citizens to serve as the municipality's governing body. As that governing body, the council has a legal and moral responsibility to represent and safeguard the interests of the community.

           Urban treaty settlements that are negotiated by the province will have significant implications for the land use and other local policy decisions formulated by councils and their communities. In the case of Nanaimo the province has appeared, until recently, to be unaware of, if not uninterested in, such implications. British Columbia municipalities, as recognized by the province's own statements on the community charter, are independent governments with the authority to determine the interests of their communities. Only municipal councils can properly represent and safeguard important local interests in the treaty process. Municipalities should be included in the treaty process as full and independent parties.

           As an aside and from a purely pragmatic perspective, it must surely stand to reason that the full and direct participation of the local city government in an urban treaty process is essential. How can the province expect any urban area settlement arrived at without the participation of the municipal government to be supported by the local citizenry?

           I wish to talk about the jurisdiction over fee simple lands. In most major urban centres throughout B.C. there exists a relatively modest amount of provincial Crown land. In the absence of large Crown holdings, the province will need to consider including fee simple parcels in future treaty settlement packages. The province has stated that such parcels must be acquired on a willing-buyer, willing-seller basis. The city of Nanaimo along with, I suspect, most municipal governments does not object to the province's plans for acquiring and transferring fee simple land to first nations. The city does object strongly, however, to the view that such fee simple lands should upon transfer become exempt from municipal regulations, including land use controls.

           The province must understand the severe implications of any change in jurisdiction over fee simple lands. In accordance with the province's own legislation, municipal taxpayers across B.C. have invested heavily in creating multi-tier land use planning frameworks. These frameworks, which are typically developed and refined through decades of study and consultation, are designed to promote rational planning, protect private property rights and allow for the orderly development of municipal infrastructure. Senior government efforts to unilaterally remove lands from municipalities' planning frameworks would place rational planning, property rights and the process of proper infrastructure development at risk. Changes to the various components of the frameworks do, to be sure, occur over time in response to changing views and priorities. When changes occur, however, they are made in the same way in which all land use policies are formulated, through open public review. Changes to planning frameworks are not arbitrarily imposed by senior governments or other outside bodies. All fee simple lands designated through urban treaty processes as treaty settlement land must remain under municipal jurisdiction.

           Recommendations. Later this month the committee is expected to report to the Legislative Assembly on the form and content of questions that should be used in a provincewide referendum. In keeping with the city of Nanaimo's positions, which I have presented to you, I would like to recommend the following referendum questions for the committee's consideration. First, should a municipal council, as the elected body responsible for representing and safeguarding the local interests of its community, be included as a full and independent party in any urban treaty process that directly affects that municipality? Second, should fee simple lands, designated through an urban treaty process as treaty settlement land, remain under the regulatory jurisdiction of the municipal government?

           In closing, as noted earlier, the three parties to the existing SFN treaty process — Canada, British Columbia and the Snuneymuxw first nation — have been negotiating together for several years. Prior to the select

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standing committee being formed to make recommendations on questions for a provincewide referendum, the parties to the existing process released a proposed agreement-in-principle, or AIP.

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           There is, the city understands, pressure on the parties to finalize the AIP now, before your committee has had a chance to report to the Legislative Assembly and before the referendum has been held. It is critical that no AIP be endorsed prior to the referendum. The referendum is designed to assist the new provincial government in identifying the principles to guide British Columbia's negotiators in all treaty processes, including the Snuneymuxw process in Nanaimo. Any decision by the province to endorse the proposed SFN AIP before the referendum would undermine and indeed make a mockery of the select standing committee's effort. Moreover, such a decision would be completely unfair to the citizens of Nanaimo and their locally elected officials who have been asked to provide their input today.

           Council and I wish you every success in your deliberations, the consequences of which will affect every citizen in our province. If there are any questions, I'd be pleased to try and answer them.

           J. Les (Chair): Thank you very much, your Worship. Questions? Gillian?

           G. Trumper: Good morning, Mayor Korpan. Throughout your presentation and from other presentations we have heard right through the province, there's a general feeling that there has been a lack of participation or information on the part of third parties. I'm speaking generally. So what you're saying is that there has been a lack on the part of the city of Nanaimo to be part of the treaty process even though there are TACs and RACs and all those theories and things.

           G. Korpan: That is exactly what I'm saying, Madam MLA. The treaty process specifically precludes anyone other than the provincial government, the federal government and the respective first nations from being a formal party at the table. Unless you have status at the table, you are a backseat observer and no more.

           As our experience with the provincial government to date, I'm hopeful that is changing since our discussions with the Attorney General. The previous provincial government took little consideration or understanding of local government implications affecting not only the taxation issue that you referred to but particularly the land use processes of community plans, zoning bylaws and other regulations that affect how our services are provided.

           J. Les (Chair): Any further questions? Blair?

           B. Lekstrom: Thank you, Your Worship. Just a question surrounding the idea of self-government. It's certainly an issue that faces this situation that we're dealing with. In your views on a style of government for first nations, your views as far as reflecting possibly a municipal-style government model…. I'm just trying to get your feedback on that.

           G. Korpan: The council respects the right of first nations, particularly the Snuneymuxw first nation, to negotiate a settlement…treaty issues under the constitution. We believe that between the extremes of total integration and existing jurisdictions versus a sovereignty issue, some are recommending a quasi-national state. There has to be a balance somewhere in between. I would think, in the long run, that if we're going to be having some understanding of the basic workings of neighbours, there has to be a basis of equality. I would expect that unless we're having a massive change in governmental structure in this country between the three existing levels, an ultimate first nations form of self-government will be more similar to a municipality than to an independent sovereign country.

           J. Les (Chair): Thank you very much, Gary, for your presentation this morning. We appreciate you taking the time.

           Our next presenter is Joy Newall on behalf of the South Island regional advisory committee.

           J. Newall: Good morning, members of the committee and all those who came to witness this session today. Thanks to the Snuneymuxw first nation for the privilege of being here today on their traditional territory.

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           I requested this opportunity to speak to the government of British Columbia as a representative of the South Island regional advisory committee on behalf of the Aboriginal Rights Coalition. I'm also a member of two national committees, the Quaker aboriginal affairs committee and the Quaker committee on jails and justice.

           My career in education and decades of writing scripts for CBC has demanded of me knowledge of history and current affairs. I grew up in Australia and witnessed the ugly history of aboriginal affairs there. When I arrived in Canada in the late 1950s, I was horrified to find the situation here to be as unjust as in my native land. I have since then been an activist for social justice.

           I am aware that most Canadians have scant knowledge of the pre-contact history of the first nations people, of their distinct cultural identities, their languages, their political and institutional systems including education, health, justice, transportation and trade. Little, if anything, do they know of the injustices imposed on the first nations by the colonialists or the continuation of those injustices under the Indian Act to this present day. That act was designed to assimilate the first nations into a colonial one, but the word "assimilation" has morphed today into the phrase "one law for all" or "be like us, or else."

           Are we as a province, perhaps, playing the television game of Jeopardy, where the government provides the answer, a preset policy, and we are to come up with the referendum question? In the game of Jeopardy

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on television the contestants have to prove that they have some good general knowledge on a wide variety of subjects. Perhaps all B.C. citizens should have to study aboriginal history to participate in a referendum. The only text that they would need to study for this test is the Royal Commission on Aboriginal Peoples, which was published in 1996 and paid for in Canadian tax dollars. Simply following its recommendations, the government would be able to cancel the wasting of scarce public money from the present B.C. budget on a referendum, because the answers are already in the Royal Commission on Aboriginal Peoples.

           One referendum cannot a treaty make. Time and understanding will. A referendum cannot provide the understanding necessary for negotiation. I'm going to ask your indulgence for a minute or two to take a glimpse back into B.C.'s history. I'm going to quote from Thinking About Home by Sarah Chandler.

           "Imagine. Imagine your home. Your living space and the land around it. Your family. Your friends. Your community. Your way of life. Think about how precious that is to you. Now imagine this. Suddenly your community is overrun by strangers who don't speak your language, who take your food without asking. They begin to build buildings and dig holes all around the countryside without your permission. These people are not your traditional enemies. There has been no declaration of war. These people are heavily armed.

           "When you find a way to communicate with these people, they tell you that they have come to use the land, because they can see that you're not using it. They bring diseases you've never known before, and many of your family and friends sicken and die. These strangers increase in number, beginning to limit your activities and access to resources. They tell you that they have come to stay, that they own the land, not you. They are the government, not you.

           "Now imagine that you have no right or title to anything except what they choose to give you to tide you over until you've learned to become like them. Except you will not be able to get a job or buy property or vote unless you renounce all ties with your family and community and move away. Then you can vote. No promises about getting a job or buying property, because after all, you are still one of the others."

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           For the Snuneymuxw people this is a reality. Despite all of that, they have a vision, and this is how they wrote it:

           "We are committed to negotiating a treaty that will recognize our aboriginal rights to land and resources in our traditional territory, preserve our heritage and culture and support a healthy and self-sufficient community. We expect to share our territory with non-Snuneymuxw citizens in a manner that will create mutual understanding and respect and a healthy and prosperous community for everyone."

Is that vision too tough for the rest of B.C. citizens to accommodate? Does that call for a referendum?

           I too have a vision of a time when the words "them" and "us" are no longer part of our discussions on aboriginal affairs. Those two words have proved to be as dangerous as weapons in this community. I congratulate many of the first nations, federal and B.C. negotiators who have worked fairly and patiently over the last few years to bring conclusion to the treaty process in the south Island. It is time for all of us to acknowledge that the past has left us with a need for apology and forgiveness. The cities and towns cannot be rolled up like a carpet, returning the landscape to its original tenure. No treaty negotiator is asking for that.

           Since aboriginal rights are protected under the Canadian constitution, why do we need a referendum? Righting relationships in the province has to happen in our hearts. Let us acknowledge that "one law for all" is simplistic and unjust. The highest law of the land states that people's rights are different, depending not only on their status but also on the province in which they live.

           Let us ensure that both federal and provincial governments find the means to provide sufficient land and resources so that the aboriginal population has an equal economic position with all other constituencies. Where there is little or no Crown land available, as is true here in Nanaimo, the negotiators must make fair exchanges with licensed lands and take advantage of willing sellers in order to bank fee simple properties, thus ensuring the quantum to be granted under treaty rights to the aboriginal communities.

           Let us discover that self-governance is not to be feared. Rather, it must be understood as a method of retaining individual cultural approaches to issues such as health, education and religion. The white culture has self-governance of various forms — municipal, religious, sectoral, regional and so on. Perhaps we're all stuck on a belief that the government system we have is the only way to govern. Maybe with a change of lenses we can see another, better way.

           I envision a community where I could, if I wished, visit an aboriginal health clinic with the same freedom I visit our present medical facilities. The aboriginal elders have much to teach us about plant medicines and healing. Perhaps my grandchildren could go to an aboriginal school if they wished to learn the language and culture. Aboriginal police are already working in our systems, and in the case of restorative justice — an aboriginal original — they are teaching us as well.

           Let us adopt an attitude of inclusion rather than exclusion from one another. Let us celebrate the enormous gifts of the artists among the people of northwest nations. We have their sculptures displayed in our airports — why not in our theatres, schools, music halls and galleries?

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           Let us remind the citizens of B.C. that they are not in any position to give the first nations anything. Returning what is rightfully theirs comes with compassion and understanding. The B.C. government must emphasize this. Our culture is driven by consumerism, leading us to abuse of the ideals of aboriginal peoples. Let us now embrace a wider view of this part of the planet Earth, knowing that all people are connected and all can contribute to future prosperity and peace.

           Let us admit that we have endangered the fish stocks in B.C. waters, especially salmon, which was for

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centuries the major source of protein to support the lives of generations of aboriginal people.

           Treaties, not referenda, can ensure a fair sharing of all economic resources: fishing, forestry and mining as well as oil and gas. Let us guarantee that aboriginal cultural and heritage sites be valued as highly as any museum or cemetery. Let us prove that the interim measures and treaty-related measures within the negotiations provide an excellent way of building the community acceptance of fair sharing. Each interim measure becomes a part of the jigsaw puzzle which one day will be an agreement-in-principle and, finally, a signed treaty to be honoured in perpetuity. Righting relationships is a building process, not a referendum. It is not a yes-no question, but it is a matter of time.

           Finally, let me remind Mr. Campbell that all the religions of the entire world agree that the golden rule is to do unto others what you would have them do unto you. I ask that you think of that deeply in your hearts and act with the wisdom of the ages.

           J. Les (Chair): The next presenter is Erik Andersen.

           E. Andersen: My approach is as a professional economist. It may sound cold, but that is what economists are about. We try to be about reality. I think I'll just read from what I have here, and then I'll entertain any questions that you want to pose to me.

           At the outset it is important to be clear what constitutes failure in this process. After hundreds of millions of dollars have been spent negotiating, the only thing we have is greater discord on the issues. Short of a dictated set of determinations by one side upon the other, there is probably only one other method to be used: third-party binding arbitration.

           A corrosiveness has grown up around these issues that has its genesis in the notion of reparations. This type of thinking is the driving energy for almost every social conflict on this planet today. It is nearly impossible not to recognize how entrenched Canadians are in the notion that somehow the general population has a debt to pay to Canadian natives. The skilful exploitation of the idea of a collective guilt has elevated fewer than one million people, out of 30 million, to a special status.

           Crafting a workable social plan that strives for success for all its citizens cannot, by any measure, enshrine differentials between citizens based upon ethnicity or tribalism. We only have to look at today's newspapers to see what the fruits of tribalism are. In short, to knowingly support such a partitioning and differentiation is nothing less than ignorant.

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           A formula of transition from blatant tribalism towards pluralism seems the only reasonable path for citizens of British Columbia. This transition must be focused upon the individual, not upon a tribal council. The ideal formulation would be that each native receive a personal parcel or parcels of title land with covenants attached allowing, over time, total release from that personal trust.

           The same would apply to a quantity of money. Income from that personal trust would be continuously available to the beneficiary and access to portions of the capital given over a length of time. The present reservations would remain in collective ownership but receive their supporting revenues only from those tribal members wishing to retain their band status, much like a corporation in modern times.

           The challenge to create a question that sorts out native issues is just too simplistic. Rather, it seems more useful in the circumstances to postulate a series of questions that reflect a vision of our future. It is now a good time to help British Columbians understand that support for a social model that features a divided society is a recipe for future social unrest — possibly civil war in the extreme — and certainly for a society that will function well below its inherent economic potential. I want to underscore that. There's plenty of evidence around the world today that is available to anybody who cares to cast around for it. One of the leading proponents of that is, of course, the economist out of Peru. You've probably already had reference to that. You don't have to reinvent the wheel in terms of research. It's already there in front of us.

           Guided by the above discussion, the question I propose is: do you support the proposal that the governments of British Columbia and Canada agree to binding arbitration from an international and respected court where each qualified native person, not tribe, is to receive an equal quantity of land and money as an individual, one time only, and that these assets are subject to certain protective provisions for a specified period or periods, depending on the asset category? These lands and moneys are to be transferable to heirs and beneficiaries upon death of the owners.

           J. Les (Chair): Thank you, Erik. Any questions from the committee members? I see none. Thank you very much.

           Our next presenter is Reed Elley, Member of Parliament. Good morning.

           R. Elley: Good morning. I would like to thank the members of this committee for the opportunity to appear before you. As a Member of Parliament for the Canadian Alliance, I belong to a party with a deep faith in the ability of ordinary citizens to make responsible, intelligent decisions. Ever since the 1987 founding of the Reform Party, the forerunner to the Canadian Alliance, we have advocated the three great policies of direct democracy: referendum, initiative and recall. It's a pleasure to note that in this period of time, British Columbia has passed legislation to adopt all three.

           It is important to our party that major constitutional amendments are presented to the people for acceptance or rejection in a referendum. We see the constitution as a law to government — setting limits on what government may do — rather than a law of government, changeable at the pleasure of those in power. The voters should have the ultimate say in establishing the rules by which government is carried out. We are particularly proud of having helped to defeat the

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Charlottetown accord in the 1992 referendum. However, at the same time we would have accepted the result if the accord had been endorsed by the voters, because our commitment is to democratic decision-making.

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           We see the negotiation of contemporary treaties with first nations and British Columbia as being, for all practical purposes, an exercise in amending the constitution. Now, we realize that some experts argue that treaties are not constitutional amendments, but we think they are drawing a distinction without a difference. Treaty rights are recognized and affirmed by section 35 of the Constitution Act, 1982.

           Although the law is not entirely clear, this may well mean that treaties, once negotiated and accepted, cannot be changed without passing a constitutional amendment. It is prudent, therefore, to subject treaties to the same grave scrutiny with which constitutional amendments are regarded and to refer them to the people for democratic endorsement. This practice is universally followed on the native side. No first nations in the twenty-first century would enter into a treaty before holding a referendum among its membership. We support the government and Legislature of British Columbia in maintaining that other Canadians should have a similar right to vote on agreements of such lasting significance.

           There is, however, a practical problem. Each first nation can vote on its own treaty, but all treaties will affect the whole population of British Columbia. It is not practical to ask the people to vote 50 or 60 different times on the various treaties that may be negotiated in the province. Voter fatigue would inevitably set in, and the agreements would not get the consideration they deserved.

           Again, we are pleased to endorse British Columbia's proposal to hold a referendum on the principles to guide treaty negotiations. If the voters of the province endorse a set of principles in a referendum, it becomes reasonable to leave the ratification of individual agreements to the cabinet or to the Legislature if legislation is required, as it was in the case of the Nisga'a agreement.

           We would not presume as a federal party to tell your committee how the referendum question should be worded. That is, after all, precisely your mission: to arrive at the wording of a question that can be put to the people. We would like, however, to communicate to you the principles that we believe should guide treaty negotiations, leaving it up to your committee's good judgment to find the right wording. We see four principles as being of paramount importance: finality, affordability, maintenance of the Canadian constitution and the protection of private rights. Let me say a little about each of these.

           Finality. The nineteenth-century treaties spoke of the extinguishment of aboriginal rights and title, in language that left no doubt about the finality of the agreement. First nations today are no longer willing to sign treaties that speak of extinguishment. Whatever wording is used, we believe that closure must somehow be achieved. British Columbians and indeed Canadians in general cannot be expected to accept open-ended agreements whose bottom line is never discernable.

           Affordability. We recognize that treaty-making will require the transfer of land, resource rights and money to first nations. This transfer cannot be unrestricted. It must be kept within the limits of what Canada and British Columbia can afford. I speak here not only as a British Columbian but also as a member of the Parliament of Canada, which must vote its approval for federal expenditures. Our party opposed the Nisga'a agreement because, among other reasons, we thought it was far too expensive. We certainly will not support a subsequent series of agreements that are even more expensive on a per-capita basis.

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           Constitutionality. The Canadian Alliance supports the concept of aboriginal self-government within the existing constitution of Canada. We do not support the so-called inherent right of self-government nor do we support creating a third order of government or a system of treaty federalism. Although the Liberal Party of British Columbia has dropped its judicial challenge to the Nisga'a agreement, we continue to believe that that treaty ran counter to the constitution by transferring to the Nisga'a government, powers that properly belong to the governments of Canada and British Columbia. We do not want to see, and we do not believe that the people of British Columbia will accept, the fragmentation of the province into dozens of quasi-autonomous jurisdictions operating outside the traditional constitutional order.

           Protection of private rights. Treaty-making in twenty-first-century British Columbia faces a different situation than that prevailing in the nineteenth-century prairie provinces or the twentieth-century Northwest Territories and Yukon. In those cases the land was still largely unoccupied. In contrast, almost all of British Columbia either is held in fee-simple or, if Crown land, is subject to multiple tenures and licences relating to mining, forestry, grazing and fishing, etc. These rights were acquired in good faith, and they are the basis of British Columbia's economy. They must be respected in any treaty negotiation process.

           In conclusion, let me say that the British Columbia treaty process is in a perilous condition. As you are well aware, I represent, federally, the parties involved in possibly the first urban treaty to be settled in British Columbia, with the Nanaimo first nation. As an observer of this process who has, because of his position, interacted with many who are greatly interested in the outcome, I have some real concerns. On several occasions I've been able to share these with those directly involved in the process.

           There are two points which I would like to make. First of all, there should have been a recognition, even before negotiations began, that every effort must be made to bring natives and non-natives together. This could have been achieved by more intentional meetings where we could have discovered our mutual interests and concerns regarding life itself. We need to discover what our shared values are — what is important to us

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as human beings and how we learn to trust and respect each other — before we start talking about land, money and governance issues. In my view — and I want to stress this because I feel it very strongly — if at the end of the day, when the negotiators have all gone home, we have not seen more understanding, more respect, more trust and less prejudice as a result of this process, then the treaty negotiations will have failed us as human beings.

           This brings me to my second point. There should have been a recognition from the beginning that perhaps the most important level of government to be involved in an urban treaty is municipal government. These hard-working, underpaid elected officials truly have their hands on the pulse of the people. Because they have not been given full negotiating and voting status at the table from the beginning, problems have arisen which could have been avoided. Municipal officials quite properly have concerns about a number of issues, including the sale of private lands on a willing-seller, willing-buyer basis and the delivery of municipal services to the increased native land base. This is still something that could be changed, even at this late stage, if there was a political will on the part of the federal, provincial and native negotiators to include them fully at the table.

           Although the B.C. treaty process has gone on now for eight years and the parties involved in it have invested half a billion dollars in conducting negotiations, not a single agreement has been approved. This cannot continue forever, because the cloud of uncertainty cast over land titles by the stalled process is highly detrimental to the economic health of the province. We hope that a properly phrased referendum question will break the deadlock and bring negotiations to a successful conclusion. But if that does not happen, our party is prepared to consider other alternatives such as appointment of a federal commission to consider claims in preparation for a legislated solution. Be that as it may, we wish your committee well and hope that your efforts will lead, in a reasonable period of time, to modern-day treaties in British Columbia that are final, affordable, constitutional and respectful of private property rights. Thank you very much.

           J. Les (Chair): Thank you. Questions, anyone?

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           M. Hunter: Thank you, Reed, for that presentation. Your position as critic for aboriginal affairs shows through in the tone and content of what you've brought to us, and I'd like to thank you for doing that. I do have a question with respect to the views that you express on page 5 of your brief — that you think there is a gap in trust. I think that's been seen here this morning and in other hearings we've had.

           Are you at the point in your views where you think there needs to be a slowing down in the process? We've heard other witnesses talk — indeed this morning — about some interim measures as a way of providing some progress and building trust. How does that kind of approach stack in your mind versus getting on with treaties so that we can have some security of tenure around the land base in British Columbia so investors know what they're facing here? Can you give us your views on that question?

           R. Elley: Well, thank you very much, Mike. I appreciate the question. I think this is very, very crucial. I don't know if the committee is aware, but I have three aboriginal children in my home. We have worked with aboriginal people for a long, long time. I have worked with them on their reserve; I have worked with them in the urban setting. I know the kind of conditions that many of our native people have to live in — Third World conditions that would be unacceptable to any one of us sitting here in this room. It has gone on far too long.

           However, we are not going to change the wrongs of a hundred or so years in a short time. If at the end of the day, as I have said, we are hoping to have a climate in which all of us can live side by side respecting each other, understanding each other's culture and being able to settle issues amicably, and this process does not bring that, then we have failed each other as human beings, no matter all of the highfalutin words we use and the number of negotiations we have and the kind of settlements we make.

           It is never too late, in my view, to take steps backward to achieve something that is going to be better in the future. I've talked with people on the B.C. Treaty Commission; I've talked with native people and with civic leaders. I suggest it's quite possible that we could step back in this process and do it better and bring a better understanding between our peoples. That's the kind of Canada I want to live in, and I hope it would be the kind of Canada that you would want to live in too.

           V. Anderson: You stressed there the importance of understanding each other and our values, and I would agree with that. We've had some presentations saying that perhaps we should begin by bringing together the local area municipalities and the people in local communities and ask them to give us direction and work from the community — whatever direction, up or down, it is — rather than the process in which we're engaged at the moment. Do you have any comments about how that might be done? Is that a good way to go?

           R. Elley: Well, there are a lot of stakeholders in this. In fact, all of us in this room and in the whole of the province are stakeholders in this. Unfortunately, the way our democracy often works is that we place responsibility in the hands of a few to take action on the part of the many. When you do that, I guess, human nature being what it is, there are many people who feel disfranchised by that. There are native people who feel disfranchised by the process with their own leadership. There are many non-native people who feel disfranchised because of the leadership they see from others. I again would say: yes, we should be doing that. If we haven't done it, then it's to our shame. It really is.

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           J. Les (Chair): Perhaps another question, Reed, from your observation of the treaty process as it's unfolded in B.C. over almost the last decade. We're engaged in what is called a comprehensive process or, as some have said, the grand-slam theory of treaty-making. Is there perhaps room for a more incremental process, in your view?

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           R. Elley: Yes. A number of people have indeed pointed out that it could be possible to be incremental. Some people have said that before we start talking about governance issues, let's settle the land issue. Let's get that settled. Let's go at it piece by piece. Let's settle these issues instead of taking this huge shotgun approach that we have at the moment, and out of that come up with multiple difficulties that give all of us some kind of fatigue and disappointment at the end of the day. Certainly we need to look at that as one of the options, and we ought not to not consider it.

           C. Dennis: Could I ask the honourable member a question about property rights?

           J. Les (Chair): No, you cannot; sorry. Clarence, please have a seat.

           Are there any questions from committee members?

           C. Dennis: Our tribes have property rights that he agreed that those property rights should be disregarded by Canadians.

           J. Les (Chair): Clarence, would you please respect the people in the meeting here.

           C. Dennis: Could I respectfully and in a good way ask him a question? Would you mind answering it, Member of Parliament?

           J. Les (Chair): Clarence, would you please sit down.

           Do you have a question, Dennis?

           D. MacKay: I thank you very much for the presentation and the thought you put into it. In your last page there you say that this process can't go on forever, I'm assuming because of the cost associated with it and the uncertainty for any future economic development in the province.

           I wonder: has the Canadian Alliance ever given any consideration to putting an end date to the process? If we haven't come to some resolution ten years from today, maybe that's when you would look at the appointment of the federal commission to consider claims in preparation for a legislated solution. Have you looked at the time frame commitment at all?

           R. Elley: We have not put into any kind of policy statement anything regarding that, Mr. MacKay. We have looked at it as an option. I would hope that we would never have to get to that state, quite frankly. We do know the deep cost of this to us all. Yes, there's the huge economic factor — that cloud of uncertainty that's over us as a province. We just saw our dollar dip today to the lowest price it has ever been on the world market. The federal government still will not tell us, I don't think, that we are in a recession. I think we are in a recession. That means that all of us, pulling together, have to somehow get rid of the cloud of economic uncertainty that is over us not only as BC'ers but as a country. We do have to move in that area.

           At the same time, we ought not to just legislate for the sake of the economic situation. I think we need to be very careful about what that means in terms of our human dignity and also the cost that brings in terms of relationships with people.

           J. Les (Chair): Thank you very much, Reed, for presenting to the committee. We appreciate your taking the time to do so.

           The next presenter is Jim Manly on behalf of the Council of Canadians.

           J. Manly: Thank you, Mr. Chairman. I'm appearing on behalf of the first nations committee of the Mid Island Chapter of the Council of Canadians.

           First of all, I would like to thank the members of the committee for this opportunity to appear before you on behalf of the first nations committee of our chapter. You have a busy schedule involving both hearings and travel, and I appreciate that yours is not an easy task.

           Our first nations committee was formed this fall in response to the negative attitude taken by some municipal politicians toward the treaty process, with particular reference to the Nanaimo negotiations. We're also concerned with the question before your committee — that of the treaty referendum. The Council of Canadians works for an independent Canada, which will provide all Canadians with opportunity to share in the benefits which a prosperous country like ours can offer. First nations people, as the original owners of the land, have the central and important place in our understanding of the country Canada can and should be.

[1035]

           We need to remember that it is less than 20 years since first nations and other aboriginal peoples had their rights recognized in the Canadian constitution. This recognition was achieved only after a long and determined struggle, and there were many powerful forces, including provincial governments, which resisted it.

           The full meaning of aboriginal rights has yet to be determined. Clarification of aboriginal rights can come about either through the courts or through a negotiation. Both processes are complex, time-consuming and expensive and of course they sometimes complement each other. Partners to an agreement sometimes have to go to court to determine the exact meaning of a particular clause. After court cases which establish general principles, there's often a need for further negotiation. Even after a war, parties have to sit down and negotiate. The Supreme Court decision in Delgamuukw established that aboriginal title involved rights to the land itself.

[ Page 504 ]

           Again, the full meaning of this has to be worked out, either by negotiation or by further court action. There is no quick and easy road to the resolution of a problem that is at least 150 years old. Perhaps this was the major problem with the beginning of the treaty process — that people generally thought it was going to be easier than it has been. In general, where possible, negotiation is greatly preferable to court action as a way of reaching a workable understanding of aboriginal rights. Court action is based on a win-lose model. Sometimes this degenerates into a lose-lose model. Negotiations entered into and pursued in a spirit of fairness and respect can result in a win-win situation. We're pleased to see that in its announcement of these public hearings, the provincial government has recognized the possibility of a win-win situation when it said: "Negotiating workable, fair and affordable treaties with first nations will benefit all British Columbians." We very much agree with that statement.

           This of course raises the question of what is affordable. The answer to that question depends upon our priorities as a province. Looking at the example of our families, we all know that what one family can afford, another family of the same size and income cannot afford. It depends upon what people decide is important. If we place a low priority on justice, we will not be able to afford even the kind of settlement that would be the absolute minimum for first nations people. We won't be able to afford it if we don't regard justice with a high priority. On the other hand, if we give this a high priority, we will be able to go a long way toward a settlement that all sides can regard as fair. This does not mean that we would not expect our provincial negotiators to keep advocating terms which would serve the greater good of the larger society. We expect our negotiators to negotiate for the province.

           Your mandate is "to consult with the public and to make recommendations to the Legislative Assembly regarding questions for a referendum on principles to guide the B.C. government in its approach to treaty negotiations with first nations." With respect, our committee urges you to recommend that no referendum be held. We have a number of reasons for thinking that a referendum would not be helpful.

           First, the great majority of first nations involved in treaty negotiations see such a referendum as an example of bad-faith bargaining. As the B.C. Treaty Commission report Looking Forward, Looking Back points out, treaty negotiations are based on 19 commitments made by Canada, British Columbia and the First Nations Summit in 1991. These commitments cannot be changed unilaterally. If changes in the basic principles are to be made, this too must be subject to negotiations.

[1040]

           First nations with limited resources have invested heavily in the negotiations to this point. Most of them have borrowed heavily in anticipation of a settlement. To change the ground rules halfway through a multistage process would negate much of the work already done. The suggestion has been made that British Columbia could be sued for damages if it should in any way renege on established negotiation commitments. Perhaps the committee and the government might wish to get some expert legal advice on this subject before it proceeds further, or perhaps you already have.

           Second, a referendum on treaty negotiations will be expensive, although to be honest, I have no figures on this. Does the committee or the government have an estimate of the cost of a provincewide referendum? At a time when many families and many communities in the province face financial crisis because of problems such as we have in the forest industry, at a time when government departments are being told to cut their budgets by 25 percent to 50 percent, it doesn't make sense for the government to waste money on a referendum. That money would be better spent on programs that would benefit first nations people and the other people of British Columbia.

           Third, referenda tend to be divisive and to polarize people. This does not create a conducive climate for negotiating. Some people, recognizing the divisive nature of referenda, have advised you to ask non-controversial questions. For example, on October 18, Marlie Beets, speaking for COFI, the Council of Forest Industries, said: "I think it is important for the committee and the government to come up with some questions or an approach to this whole process that is simple, perhaps even a question on whether there is a strong feeling for a renewed commitment to the treaty process."

           While it's true that a simple question like this would tend to reduce the polarization that a referendum might otherwise cause, what good would it do? If 50 percent, 70 percent or 90 percent of the people who voted called for a renewed commitment to the treaty process, what would that mean?

           In the unlikely event that a majority voted against such a simple question, where would that leave the government? It would still have the legal obligation to come to terms with the implication of court cases such as Delgamuukw. Rather than ask a simple non-controversial question, it would be better to ask no question at all.

           Fourth, a referendum will further delay an already protracted negotiation process. Our committee is particularly concerned about negotiations with the Snuneymux nation. Representatives from the Snuneymux negotiating team spoke to a special Council of Canadians meeting in October and outlined the situation they face with respect to fee simple lands. Lands that had been tentatively identified in the spring, when it had seemed possible that an agreement-in-principle could be reached, will not be available if there are more long delays in the negotiating process.

           Finally, the Canadian parliamentary tradition asks for elected representatives to provide principled leadership even on difficult subjects. Members of the Legislature have been elected to make decisions, and we expect you to do this. Fundamental questions of justice and the rights of minorities should not be subject to referendum.

           We ask you to do the right thing. We know that there has been a campaign promise to hold a referendum on

[ Page 505 ]

the treaty process. All of us believe that a high priority should be given to keeping promises, but the fact remains that some promises should not be kept. It is better to admit honestly that this promise does not make sense in the present context than to plunge blindly ahead with a costly and divisive referendum. Thank you for giving these views your consideration.

[1045]

           J. Les (Chair): Thank you very much, Jim. There's a question from Gillian.

           G. Trumper: Mr. Manly, thank you for your presentation. You said your group was formed in the fall of this year, and I know there's a lot of concern over the treaty process, particularly locally. Would you say that in the process of the treaty process here, not enough involvement by third parties was there before we got to this stage?

           J. Manly: There has been a regional advisory committee that has met. That has been open to third parties. I have sat on that regional advisory committee and have seen the progress of negotiations. I don't think that a negotiating process can have every stakeholder involved personally in the negotiations. That's why we have governments. That's why the provincial government is there at the table: to represent certain issues which are vital to the province of British Columbia and to its people.

           We have an advisory committee which hears recommendations and follows the process of the negotiations and then can make recommendations back. But the responsibility for the negotiations rests with the negotiators, who report to the provincial government, the federal government and the first nation involved.

           M. Hunter: Jim, thank you for your presentation and your views. I do respect them. I know that there are many people who have many similar questions on the referendum that you have expressed to us this morning. I think it's important that you and the Council of Canadians understand the context, and I'm sure you do. The commitment that you talked about in the party's election platform was to negotiate treaties. The referendum on principles was seen and is seen as a tool of advancing that process. I think that context is important for everybody to recall as we go through this debate.

           I had a comment and a question on what you said. You talked about the cost of the referendum and argued that it's a waste of money, but on the other hand, you said earlier that affordability should be determined by what priorities we place on justice, by which I gather you mean having some final treaties settled. It seems to me that our priority is to get those treaties settled. Yes, a referendum is going to cost some money. I would submit to you that if that helps the government clarify the position it will take on your behalf, then I argue it's an expense worth making. That's just a point for you to consider.

           My question is with respect to what you said about B.C. negotiators and what you expect them to represent. Could you repeat what you said? I could read it in Hansard in a few days, but I want to understand what you said.

           J. Manly: I hope I didn't have a double negative in the way I said it.

           M. Hunter: I don't think you did.

           J. Manly: I said that this does not mean that we would not expect our provincial governments to keep advocating terms which would serve the greater good of the larger society. We expect our negotiators to keep advocating terms which would serve the greater good for the greater society.

           M. Hunter: All right. Thank you, Jim. I just wanted to clarify what you said.

           J. Manly: If I could just respond to your other statement. If we felt that a referendum would help to clarify the situation and would help to improve the negotiating climate, then it could be money well spent, even though it's expensive. Looking at the whole situation of what a referendum is and does — the divisive nature of it, the opposition of first nations people to the very idea of a referendum on their rights and it being so offensive — we can't help but feel that it is an expensive waste of money that will not lead to positive results but will lead to more negative results. There's a basic difference of opinion, I guess, between yourself and our committee.

           M. Hunter: That's fine. I don't want to get into a debate with you at the expense of my colleagues questioning you, but I think what you just said…. This is not going to be a referendum on aboriginal rights. We all understand that aboriginal rights are protected by section 35 of the constitution. Nothing that we are going to do is going to come anywhere close to suggesting that aboriginal rights be questioned in a referendum. It's just not on the table.

           J. Manly: I don't think I implied that. If I did, I regret that.

[1050]

           D. MacKay: Jim, thank you very much for your presentation. You touched very eloquently on the mandate of this committee and the tough job we have facing us and the fact that it was an election promise. You're suggesting for a moment that we should perhaps forget that promise. I personally have a problem with that. It was a commitment we made to the people during the election, and we were elected with a very resounding majority to represent the people of British Columbia. So it's a commitment I think we do owe to the people — to follow up with the commitments we made during the election.

[ Page 506 ]

           J. Manly: Could I respond briefly to that?

           D. MacKay: Could I just finish my question, Jim, before I forget it? I'll get off track here. You also suggested that we not have a referendum, and I respect your views on that and the reasons you gave for not wanting to hold a referendum. The question comes to me, then, based on the reason we're here today and the problems we're having with the treaty negotiation and the uncertainty surrounding the Delgamuukw decision by the Supreme Court of Canada…. Do you suggest or have you thought that maybe we should go back to the Supreme Court of Canada and ask them to define those areas that were left hanging: what is aboriginal right? What is the aboriginal right to land? We don't know what those mean, and that's why the negotiations are stalled where we are today. Do you support maybe going back to the Supreme Court of Canada, as Campbell, de Jong and Plant started when they started with their court action, to get some ruling on the legality of some of the treaty rights?

           J. Manly: No, I don't. I think the Supreme Court, in its wisdom, felt that this was an area that was best left to be negotiated. As I said earlier, court actions lead to win-lose situations and sometimes to lose-lose situations. I have a lot of faith in the negotiating process.

           If I could just make a brief comment on the question of a promise, I think of the story in the Bible about King Herod when Salome danced for him. He made a promise to her: "Anything you ask is yours." So what did she ask for? She asked for the head of John the Baptist on a platter. He was a man who kept his promise, and so John the Baptist's head was brought in on a platter. I'd suggest to you that there are times when it is better to say that a promise is not appropriate to be kept.

           V. Anderson: It's good to be with you and your incisive mind. I've been there before. I appreciate that.

           One of the things that came to me in your presentation, though, was that words are very important, and understanding the meaning of words in different cultures is important. In your presentation you commented that the first nations people were the original owners of the land. In the cultures, though, that has different meanings. I'm sure the first nations people would say they were given original responsibility under the Creator for the land, that it should be used well for all people. Non-aboriginals might not have that same interpretation of ownership. Can you comment on that? I think those understandings are an important point why people will be persistent in a pledge and a promise for which they feel responsible.

           J. Manly: I think that the testimony of first nations people at Delgamuukw proved very conclusively that first nations people had very clear ideas of ownership of land. They had clear demarcations of boundaries. There are sometimes overlaps, and the treaty process provides that those should be settled. But again, when explorers first came to the northwest coast of Vancouver Island, they found that the people there had very clear understandings of where their territory was and where the territories of neighbouring peoples were.

[1055]

           Certainly our concept of land ownership has evolved. There are many people who don't understand that fee simple ownership of land is not an absolute concept either. Fee simple means that you have certain rights to the land. We own land in fee simple, but we don't have the underlying mineral rights. They were given away by a previous government to the people who built that tinpot railroad that runs up and down Vancouver Island.

           We don't have absolute ownership of the land. No people have absolute ownership of the land. Every people, I think, have responsibility to the Creator and to future generations for the wise stewardship of the land. I think we share that with first nations people. We could learn a great deal from them about what proper stewardship of the land means.

           R. Visser: As a committee and a government, if we were able to craft a question that would elevate the understanding of British Columbians, bring all British Columbians together and advance the treaty process in a real way, would you vote?

           J. Manly: I don't think you can frame that kind of a question that's going to elevate the understanding.

           R. Visser: That's our challenge. If we could do it, would you vote?

           J. Manly: I'm not going to be supporting any referendum that is held on the treaty referendum process. I think it's a flawed process. The very idea is repugnant to first nations people, and I would want to stand in solidarity with them and not vote on a question that they feel calls into question their basic rights. No, I wouldn't vote.

           J. Les (Chair): Thank you, Jim, for your presentation.

           The next presenter is Bart Jessup.

           B. Jessup: Hon. committee members, thank you for your work gathering input for the referendum on treaty negotiation principles and for receiving my submission. I'm here as a private citizen who, by virtue of living on Gabriola Island, is directly affected by treaty decisions.

           I think the committee's work, to some extent, can be characterized as a form of what might be called values-based strategic planning. The principles eventually put to the referendum will inherently express certain values and obviously lead in certain strategic directions. Obviously, taken as a whole, they should form a coherent plan for achieving socially desirable goals and outcomes. I'm here to argue that the values of personal responsibility, social cohesion and productivity are foundational to a well-functioning civil society. Many existing policies concerning aboriginals, however,

[ Page 507 ]

embody the very antithesis of these constructive values, in my opinion.

           I have provided you with a table that illustrates how perhaps three referendum principles could express the essential values of personal responsibility, social cohesion and productivity. You can see that if you read the table by row from left to right, I would say that the value of personal responsibility, as distinguished against claims of personal entitlement or a type of culture of grievance, supports the goals of dignity and respect of the person, which I would argue are inherently desirable social goals. That goal leads to a desirable outcome of equality before the law and security of the person and of the person's property. If we were to translate that into a principle, I would summarize that principle as one law. I'm quite mindful of the many limitations and issues inherent in advocating such a simple principle. However, I think that all B.C. citizens should be treated equally before the law.

[1100]

           Turning to the second value of unity or social cohesion, I would contrast that with the process of social divisiveness or conflict. I think that all members of society ought to have the opportunity of inclusion into the common purposes of that society and that that leads to an outcome of equality of opportunity and an end of welfarism and of demand for support. I would cast the principle that follows from those views as "one nation." That is, I would argue against self-government for native groups. I think that negotiations should not create any separate civil authorities. I think that is an act of extreme division both nationally and provincially.

           Thirdly, turning to the underlying value of productivity, I think it's obvious that if we're to have a successful and prosperous society, productivity needs to be valued ahead of the appropriation of the wealth of other people. I think that the goal of creation of wealth and employment is pretty well unanimously accepted and that one of the outcomes of those efforts is prosperity. In my opinion, this has to be grounded in private property. I think that one of the causes of native poverty is the lack of title the natives hold to their own homes. Therefore, I would argue that one principle ought to restore to native people the right of private property for the reserve property. Therefore, I would say that band members should have individual title to reserve property restored.

           I appreciate that there's a challenge in wording questions that can reflect principles, but I've taken a shot at it. I would say that the principle of one law could be expressed by the question: should B.C. require equality before the law in order to create a society of individuals where personal responsibility, dignity and respect are upheld? The second referendum question, to address the concept of one nation, could be phrased as: should B.C. become a province divided into tribal areas, with separate civil authorities, or remain one jurisdiction? Thirdly, in terms of the principle of private property, that could be phrased as the question: should native band members be given individual private title to their own reserve property?

           I think these kinds of values need to be acknowledged and the principles put to referendum and that to ignore the values that are constructive to the building and advancement of society would be harmful.

           M. Hunter: Bart, thank you for being here this morning. On the issue of equality before the law, this has been a fairly common theme throughout our hearings. If you've read the Hansard, you will have seen it. One of the difficulties that I know I am having and others are having is that the constitution of Canada already provides for aboriginal rights which are, as we know, in some senses different. We know that where aboriginal rights cases have gone to the Supreme Court, particularly in fishing, there is an aboriginal right to fish in some bands in some places. It seems to me that if we accept the constitution of Canada as the supreme law of the land, we already have inequality in certain very carefully defined respects, at least with respect to fishing. It's less carefully refined and defined with respect to other aspects of our lives.

           I just want to explore this a little bit with you because you've obviously given a lot of thought to it. I interpret your question on one law, Bart, as being that personal responsibility, dignity and respect are not upheld by the current law of Canada. I don't think that's what you meant. Is it?

           B. Jessup: There are elements of the law of Canada that I think do indeed undermine the dignity of all Canadians including, particularly, native people. For example, I would reference the Criminal Code of Canada amendment made in 1995, section 718.2(e), which requires courts to avoid imprisonment of convicted criminals "with particular attention to the circumstances of aboriginal offenders." That's the kind of legislation and Supreme Court decisions that I had in mind by my remark.

[1105]

           In my opinion, to hold any group in society to a diminished level of personal responsibility blocks access to their dignity. It is a dignity-diminishing type of legislation. I would also incidentally point out that apropos to that particular section of the Criminal Code, a review in the Saskatchewan Law Review in March of this year showed that it had no effect whatsoever in reducing native crime or incarceration.

           J. Les (Chair): Thank you for coming this morning, Bart.

           The next presenter is Jacinthe Eastick.

           J. Eastick: Good morning, Mr. Chairman and committee members. I am a citizen of Canada born in Quebec and have lived half my life in British Columbia. I am self-employed and a Gabriola resident. Thank you for giving average British Columbians like myself an opportunity to suggest which principles should guide the treaty process in British Columbia at the referendum. You will find within my written presentation my proposals for the referendum questions.

[ Page 508 ]

           It is my opinion that treaty negotiation in this province has been and will continue to be lengthy, costly, complex and a divisive process, because each and every table is negotiating with unknowns. Unknown No. 1: what is an aboriginal right? I keep reading that aboriginal rights are not defined but that they are nonetheless recognized and protected by the Canadian constitution. I believe that Canada failed all Canadians by putting undefined terminology in the language of a legal document. Even a lowly municipal bylaw contains a list of definitions to clarify the intent and to avoid interpretation that could lead to costly court challenges. Unfortunately, criticism of the past will not change the reality of today, which is that as a province we are to negotiate the nature and the extent of aboriginal rights with each and every claimant within our provincial boundaries. That will take time.

           I can readily accept typical cultural characteristics like language, modified trees, sweat lodges, traditional ceremonies, potlatches and the like as aboriginal rights for the aboriginals of today who practised such at the end of the eighteenth century. In the same vein and in my view, the unique characteristics of the hunting and fishing methods used by individual Indian tribes pre-contact are aboriginal rights. But try as I may, I cannot agree with the courts ruling that fishing and hunting in their broad definition are aboriginal rights. In my humble opinion, those are humanoid and in some instances animal activities, not aboriginal activities at all. To claim aboriginal rights to a humanoid activity, you would have to prove that you were the very first human fishing and hunting in one very specific place on this planet at the dawn of mankind. I truly hope that the Supreme Court of Canada will be given the opportunity to re-examine the justice of those rulings and be presented with arguments to prop or justify such reflection.

           Unknown No. 2: what is an inherent right of self-government? Here again, Canada failed all Canadians. In an interpretation of section 35 of the constitution, the federal government decided in 1995 that self-government was an inherent aboriginal right but chose not to define it. That left the door wide-open for interpretation despite the publication of a wonderful, glossy policy brochure. I believe that when this new concept was introduced, the concept of inherent right of self-government, the treaty process in B.C. should have been amended to include local government as a fourth party at each table. As it is, each table is struggling to define what form this inherent right of self-government might have for each and every claimant, without direct representation of 96 percent of the population of this province.

[1110]

           On Gabriola Island, where I live, there has been much anger around this particular treaty component. The Snuneymuxw, who have had no residential presence on the island for decades, are seeking self-government on more than one quarter of the island land mass as treaty settlement lands. The majority of those lands, being private, would have to be acquired on the willing-buyer, willing-seller basis. Every islander, I am sure, would be glad should the Snuneymuxw be given lands on Gabriola, providing those lands are free of the self-government component. But for the majority of islanders, if well-attended public meetings are an indication, a separate jurisdiction on a finite land mass would be tantamount to stripping them of their democratic right to vote on land use matters that will directly affect them. The local ratepayers association has even opened a legal fund account to litigate against any infringement on democratic rights that are guaranteed in the constitution. Any and every attempt to create apartheid government in British Columbia must be irrevocably quashed. The negative social implication of balkanizing the province would far outweigh any benefits treaty-making might create.

           Unknown No. 3: aboriginal title. In 1997 the Supreme Court of Canada ruled that aboriginal title exists in British Columbia, but the extent of the aboriginal title is unknown — another unknown for each and every table to deal with. There were 14 treaties signed in British Columbia pre-Confederation. The courts have consistently recognized them as sui generis documents and valid treaties. That is the reason why it completely baffles and surprises me that those treaties were not taken into consideration in the design of the B.C. treaty process. Respect is something that is earned. I have great difficulty respecting a process whereby aboriginal title is alleged to exist when the legal reality is that in some cases, at least for the descendants of the tribes who signed the treaty with James Douglas, the treaty is not in existence. Yet those bands were allowed to enter the process under false pretences. In my opinion, when the Snuneymuxw filed the specific claims with the Indian and Northern Affairs ministry last year, the appropriate course of action would have been to put on hold further provincial negotiations at that table, pending the resolution of those federal claims.

           In the Delgamuukw case, Justice Lamer discussed the exclusivity, or shared exclusivity, of use as a condition of aboriginal title claims. That shared exclusivity translates into the overlaps of territory that we are all too familiar with in the B.C. treaty process. In my view, those overlaps are a great deterrent to equitable negotiation of the land components at some tables. Some chunks of Crown land are often overlooked or unwanted simply because they are located in the overlap. For certainty, the process should be amended, in my view, to require that overlapping claimants come to an agreement amongst themselves prior to discussing the land component of their treaty.

           Because of the unknowns that must be negotiated at each table, the conclusion of modern treaties in British Columbia will take time. To give aboriginal communities immediate benefit, I would like to see the principals agreeing to irreversible conditions that would allow immediate implementation of the "other lands" package of treaties. If those other lands were defined as not treaty settlement lands and were to remain under current government jurisdiction post-treaty, I envisage swift agreement by the parties and immediate benefit to the aboriginal community pending

[ Page 509 ]

the resolution of their treaty. Thank you very much for your consideration.

           J. Les (Chair): Thank you very much. Questions from committee members?

           D. MacKay: Just a comment, if I could. Some of the things that you highlighted there about all the unknowns that the Supreme Court of Canada has left us with. Would you support the Supreme Court of Canada ruling on those decisions and telling us what an aboriginal right is and what is inherent right to self-government? I mean, you've highlighted some of the things I asked the previous presenter. It's because of the uncertainty and the refusal of the Supreme Court of Canada to define these that we find ourselves in this position today.

[1115]

           J. Eastick: I've read several of the rulings — self-government, for example. We are all self-determining people. We have rules. Self-government for the aboriginals anywhere in the world should be the same as anybody else. We are all self-determining people, and we have an organizational structure that makes us that way. I cannot imagine why there should be apartheid government anywhere in Canada simply because the aboriginal people want to self-govern. Why are they not self-governing now? I have never understood that.

           For aboriginal rights, I believe that the court has not looked at the broad definition of activities. I believe they should truly look at it. I can understand aboriginal rights for activities that were, as Justice Lamer said, pre-contact. Well, in pre-contact, no aboriginals were hunting with .32 shotguns or whatever. I'm not a hunter.

           C. Dennis: May I ask this newcomer a question?

           J. Les (Chair): No, sir. No, you cannot.

           Interjections.

           J. Eastick: The person behind me obviously does not respect the process that is taking place here.

           D. MacKay: I'd like to thank you very much for your answer and your presentation.

           J. Les (Chair): Any further questions? Thank you, Jacinthe.

           The next presenter is Diane Brown on behalf of the Mid Island Chapter of the Council of Canadians.

           D. Brown: My name's Diane Brown. I'm also a newcomer, although I was born in Canada, in Ontario. I've lived in Nanaimo for the last 15 years. For 13 of those years I operated a retail business. It's my privilege to speak to you today on behalf of the Mid Island Chapter of the Council of Canadians. Jim Manly spoke earlier on behalf of our aboriginal committee.

           The Council of Canadians is a national association with regional chapters across Canada. We are a non-partisan, independent organization addressing the key issues of democracy, sovereignty and social justice. We have over 100,000 members, and 550 of those live in this mid-Island area. It is our practice at any public meeting to acknowledge that we are meeting on the traditional territories of the Snuneymuxw. We are meeting on first nations land.

           The following resolution from our chapter and the Kamloops chapter was presented this past weekend to our national convention in Red Deer, Alberta:

           "Whereas the government of B.C. has decided unilaterally to hold a public referendum which will arbitrarily decide the fate and direction of future first nations treaty negotiations; and

           Whereas the British North America Act of 1867, B.C. section states that the charge of the Indians and the trusteeship and the management of the lands reserved for their use and benefit shall be assumed by the federal government; and

           Whereas the democratic process, i.e., referenda, must never be used to entrench a provincial statute which results in the cultural oppression of a minority by the majority;

           Therefore be it resolved that the Council of Canadians decry the perverse use of the democratic process as a political expedient for dealing with unresolved legal and cultural issues by popular vote and deem it unacceptable; and

           Be it further resolved that the Council of Canadians express its support for the legal authority of federal and provincial governments to negotiate and conclude land claims settlements with first nations people."

The national convention's resolutions committee gave it a high priority at the annual meeting and recommended that chapters across Canada adopt this position.

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           You're probably aware that the Snuneymuxw first nation is boycotting this meeting and has unequivocally rejected a referendum on treaty negotiations. We support their position. There is no appropriate question for this referendum. There should be no referendum. It is an affront to first nations people. It is irrelevant because there is a process in place that involves three parties: federal government, provincial government and first nations peoples. A referendum is insulting and irrelevant, and it is also expensive. This money could be applied to the treaty negotiations and benefit the people here who are waiting for fair treatment.

           While much of what you have heard at these meetings is well informed and thoughtful, I urge you, as you look back over the transcripts, to reflect on the paranoia, self-interest and misinformation that has frequently surfaced. Many B.C. voters do not understand the history of this issue. Imagine some of these attitudes being repeated and magnified in the newspapers — the confrontations and the injury.

           When Miles Richardson appeared before this committee, suggestions were made to him about ways he could educate the B.C. public through Knowledge Network programs, etc. I put it to you that it is never

[ Page 510 ]

the responsibility for an oppressed minority to educate the majority. This is all wrong. It's up to our government to create harmony in this province by educating the majority about our shameful history with regard to aboriginal peoples. The trickery, the lying and the cheating have gone on centuries too long. Let us, as responsible non-native neighbours, say, "I'm sorry. Let's make amends," and put our heart and soul into this effort.

           The Royal Proclamation of 1763 said that first nations were autonomous political units living under the Crown's protection while retaining their internal political authority and their territories. This predates Canada. This is pretty clear. The only problem with it is that we have ignored it.

           Now we have provincial politicians going around the province asking non-native British Columbians who have lived here a generation or two what they think about the treaty process. These are impertinent questions. It doesn't matter what we think.

           The Snuneymuxw first nation recently held a ceremony to repatriate 300 ancestral burial remains. These were largely from museums and were brought back to their land here for proper burial. These remains were 3,500 years old and were from the Duke Point, Gabriola and Nanaimo area. This gives a sense of how far back their claim goes. That these remains would have been housed in museums for so long shows us how far off the track we have really been.

           The return of these remains was in accordance with an interim treaty measure. The Treaty Commission has worked hard and worked in good faith. Interim measures such as this one do not heal wounds, but they do show a step in the right direction. Treaty issues will not be resolved overnight. The process requires fortitude. First nations have showed that. Can we do any less?

           Talk of this referendum has shut down the negotiating process. This is disheartening for the parties involved. This hostile and unnecessary delay means that their debt load grows. Their constituents become angry. Where is this going to lead? If these negotiations do not continue, and continue with respect, we will have court litigation and confrontation which will ruin us.

           Instead of sending this commission around and instead of paying thousands of dollars for an irrelevant and divisive referendum, this government could show real leadership by supporting the process that's in place in positive ways. It could take the lead in educating our citizens about British Columbia history. First nations history needs to become an integral part of elementary and secondary school history in this province. When do our students learn that when the heroic explorers arrived, there were nations here with their own systems of government, culture and laws? When do they learn that anytime these nations have been frustrated enough to take their claims to court, the courts have upheld these rights?

           My grandson, who is non-native and goes to school in Cedar just south of Nanaimo, was in a grade 3 class where first nations studies was part of the curriculum. I appreciated that, but it should be part of the curriculum every year, and it shouldn't just be about culture. Our children need to know our history.

[1125]

           Malaspina College here in Nanaimo has a vital and exciting first nations department. This is good, but it is not Miles Richardson's job to educate British Columbians. This government needs to do it.

           In Nanaimo we have a sad situation. The rightful owners of all of Nanaimo have been pushed into a small area at the south of town where they are surrounded by noisy, stinking industries and log booms. I'm sure those that are here today thought it was pretty ironic to hear about the concerns of people on Gabriola Island. They have never given up their rights to any of their lands. They have been constant in their assertion of their rights. How are we going to deal with this?

           We must encourage the provincial government to negotiate in good faith and not look for excuses. The Snuneymuxw first nation has been in stage 4 of its agreement for the past five years.

           Nanaimo is an urban area. Huge tracts of their land were given without their permission to the E&N Railway as a land grant. There's not a lot of Crown land left. Thirty-five percent of their families live on reserve; the rest do not because there is no space. They need the land base to create opportunities for those families who have had to live off reserve. They have borrowed $3.5 million to deal with their claim. How can they afford this delay?

           Another concern is the rate at which multinational companies are depleting the lands of their resources. With international trade agreements such as NAFTA and the proposed free trade area of the Americas, FTAA, what will be in place to protect first nations?

           It is clear we cannot delay treaty negotiations. It will be more difficult the longer we wait. Whatever the results of the referendum, the issues in the current negotiations have been laid down in law and will not change, nor will the 19 recommendations agreed on by the federal government and first nations and recently affirmed by Gordon Campbell.

           In a climate of cooperation and trust, most hard details will be worked out. Creating this climate should be our focus. The Treaty Commission has already agreed on 60 points and made 19 recommendations. This is a good start. Let's build on the success, not cast doubts, raise suspicions, delay and antagonize.

           This situation is intolerable not only for first nations peoples but for the rest of us as well. Those of us who have moved to B.C., bought homes and pay taxes to the government expect that these issues will be resolved by those governments in honourable ways.

           In Canada, equality means that everyone's rights are protected. This includes aboriginal rights. Sometimes the idea of multiculturalism is used to attack these rights. This is where education comes in.

           Sometimes strong words need to used, words like paternalism, patriarchy and oppression. It's difficult to enjoy peace without justice — really, it's impossible. Let's get on with it. I ask you to recommend that no question is the best question — no referendum.

           Thank you.

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           J. Les (Chair): Thank you, Diane. Are there any questions from committee members? Seeing none, I thank you again for coming this morning.

           D. Brown: I'd just like to mention that in the copy of my submission, I enclosed a couple of articles from the local newspaper about the local situation because some of you aren't from this area. After our mayor's presentation, I think you should know that there has been a lot of consultation with local first nations people. The city and the regional district have chosen to withdraw from those talks. Also, there's a mention of the GATS proposal, the General Agreement on Trade and Services, which is part of the World Trade Organization. It's something that all of us should be more familiar with. It's going to affect all of us in significant ways. It will most certainly affect first nations. Thank you.

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

           We're now up to Randy Young and Cynthia-Mary Hemsworth of the Gabriola Ratepayers and Residents Association.

[1130]

           R. Young: Good morning, ladies and gentlemen. We're going to make a joint presentation so I'm going to get on with it. I would like to suggest a set of questions which would include a solution similar to the financial compensation of property owners evicted from East Germany when the Communist government took over. Questions which reflect the extreme position on either side are not difficult to find.

           What I'm trying to do is look at us from outside of Canada. As an example, a recent tour of the eastern Mediterranean was a first-hand look at most of mankind's early history. If I have the story straight, after an early B.C. invasion of Turkey by the Greeks, who killed all the men and took the women as slaves, which was standard operating procedure, the women consented to cook dinner but refused to eat with the conquerors. This remains a tradition today, some 3,000 years later, in this area of Turkey. Suppression by conquerors is like a fire in a coal seam. It may smoulder for generations but then flare up and burn where it is least expected.

           We visited Cyprus as guests of the Greek Cypriots. They are livid about the 1970s invasion of Cyprus by Turkey. They have the records of all the registered Greek property owners who were kicked out of the Turkish area and state emphatically that these people will get their properties back.

           I regard the existing Indian reservations as nothing more than remnant communities from previous refugee camps. The political leaders of all conquered communities will always say: "You will get your property back if you follow us." This is inevitable, because the people with a closer grip on reality will not become the leaders. Unfortunately, this only contributes to the long-term anguish. The conquered can never get their property back unless they, in turn, become the conquerors. This has been an unfortunate lesson of history.

           We later visited Kusadasi, a Turkish sea port near Ephesus. The Turkish guide was extolling the multidenominational nature of Turkish society and took great pride in the flags at half-mast after September 11. We asked about Cyprus. He turned the mike off and said to us: "Well, that's their tough luck."

           "Well, that's their tough luck" has been the operative method for countless invasions across the centuries. The only exception I have been able to find was the expulsion of property owners from East Germany when the Communist government took over and the retributions when the country was finally united. The displaced were not allowed to reoccupy their original property, but they were paid the value of the property confiscated. This did not make everyone happy, but it was a solution that everyone could live with, albeit with a lot of grumbling.

           It should not be difficult to find out how the conquerors or the conquered feel about the problem. Attached is a questionnaire set which would probably do the job. Your job is to find a solution which will stop the fire in the coal seam without igniting the conquerors. "Well, that's their tough luck" is not an option, and neither is: "You will get your property back." Please consider the German method of compensation. Thank you for your patience. Cynthia?

           C. Hemsworth: Thank you, Randy. Suggested question for referendum: do you wish to regulate the sale of fee simple lands to first nations in the upcoming treaty settlement by making it a condition of the sale that first nations abide by land use bylaws of the Islands Trust, the regional district, local municipalities and official community plans — yes or no?

           The Gabriola Ratepayer and Residents Association concurs with the Islands Trust and Nanaimo regional district that two differing land use bylaws on our small island of 16 by 3 kilometres is unfair. In the mid-1800s the Nanaimo tribes visited their 72-acre summer camp on Gabriola during the months of April, May and June. The Nanaimo band has had no residential presence on Gabriola in living memory. Now there is a suggestion that they may purchase up to 3,300 acres of fee simple land not previously occupied by the first nations. If fee simple lands become treaty lands on Gabriola, this would be a precedent-setting case and make Gabriola an island with two jurisdictions: first nations and the nation of Canada.

[1135]

           Gabriola Island is a tight-knit community. For better or worse, everyone here is very aware of their neighbours. If the Nanaimo band have land use bylaws differing from their non-native neighbours, it could make enforcement of these bylaws difficult for our Islands Trust and the Nanaimo regional district. For example, our official community plan, which was nine years in the making with input from all residents, was sent to the Nanaimo band for comments before adoption. In their response, received the day of the public hearing, the Nanaimo band said that our OCP was in conflict with their claim. However, at public meetings on Gabriola Island, Mike Rogers, the negotiator, told us

[ Page 512 ]

the Nanaimo band will harmonize with our land use bylaws — a nebulous statement at best. The Nanaimo band have repeatedly stated they wish to be masters of their own land without interference from other jurisdictions.

           We have never seen a concrete land use plan with a commitment in writing from the Nanaimo band where they would show us that they are willing to abide by the same land use bylaws as our Islands Trust and Nanaimo regional district. Issues like garbage — a very dear subject to islanders as we are keen recyclers having an excellent depot on the island and collection by the RDM — are subjects that we do not wish to discuss later.

           The most critical issue of all is that of the resale of treaty lands. Presently the Nanaimo band can resell treaty lands to a developer. In the case of Gabriola, if fee simple lands were to become treaty lands without present zoning regulations, developers waiting in the wings would be happy to develop Gabriola without current land use bylaws.

           For the 25 years I have lived on Gabriola, the issue has always been and will continue to be to curb development of this rural island. Like others islands, Gabriola is protected by provincial statute, the Islands Trust Act. The first day I arrived on the island, residents were fighting off a developer.

           This has continued up until the recently proposed Weldwood development plan. As I am sure you are aware from press reports, this latest developer issue deeply divided islanders. The wounds are just healing.

           Again, the Nanaimo band do not wish to commit themselves in writing regarding the development or resale of these fee simple lands. They see this as their prerogative, but as custodians of this precious island our opposition to its development, as expressed in our official community plan, is the same with respect to both non-native and native developers. Also, our OCP can be reviewed every five years with input from all residents.

           The prospect of a developer having the power to put up strata development — i.e., condominiums, etc., — would obviously put a strain on our aging ferry, with no immediate plans for replacement with a larger ferry, and on our water, which is in short supply, and on sewage, schools, ambulance, fire, policing and other services.

           Property taxes go to support our island as a whole. I understand we currently submit approximately $4 million in taxes for 5,000 residents, whereas the Nanaimo band currently receives up to $11 million per year for 1,250 residents. The loss of land tax revenue on the 3,300 acres will be $70,000 per year on the current fee simple underdeveloped land. Our land use bylaws and official community plan are both responsible and reasonable documents incorporating common laws for the common good. I respectfully suggest that fee simple lands on Gabriola be withdrawn immediately from the treaty process.

           I would like to thank the Chair and members of the Legislature for coming to Nanaimo and hearing us.

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

           C. Dennis: Can we ask these newcomers a question from the floor?

           J. Les (Chair): No, you cannot.

           C. Dennis: No? Thank you.

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

           Thank you both for coming this morning. That concludes those presenters who had registered to speak at this meeting.

           I've just been handed an addition to that. We have a few minutes left. I have three people who have asked to speak. Clarence Dennis would be the first. I'm going to give each of those three people five minutes.

           C. Dennis: What — no questions? Just a question to the committee.

           J. Les (Chair): Clarence, listen to me. You have to come to the microphone. You can make a presentation — okay? And you have five minutes.

[1140]

           C. Dennis: The presentation I would like to make is a very simple concept that's recognized by all British Columbians throughout the whole province. It's called "your rights to inheritance." What you inherit from your mother and father belongs to you. It cannot be interfered with by any government from any political stripe.

           The second right has got to do with property rights — the right to property. For example, I live in the Huu-ay-aht first nation on the west coast of Vancouver Island. Seventy-five percent of our logs have been logged, and 32 salmon rivers are destroyed. One of the questions that I think should be put to the people on the treaty rights is: are you willing to pay for the damage done by MacMillan Bloedel and now Weyerhaeuser?

           Refer back to the Delgamuukw decision that states that yes, Canada has a right to go into an area, like our tribe, that we've held for thousands of years. They have a right to go in there — read Delgamuukw — but there's one little thing that comes right after that right. The government — in other words, the taxpayers of B.C. — must compensate our tribe for damages done.

           I really think you should ask British Columbians if they are willing to pay that. It's called compensation for damage done to the land. I repeat, in our area 75 percent has been logged. If we go to court — and we will go to court — we will win. The court will rule taxpayers of British Columbia must compensate us for cedars, firs and spruces they have taken from our land without our permission. Secondly, they must restore the damage that they did, specifically our salmon rivers. We have 37 salmon rivers in Huu-ay-aht tribal territory. We now have four left — four. The other ones

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are extinct forever. I think the question should be put to all British Columbians. Where are all the profits going? They're going down to America. The United States of America is getting our wood, not we the people of B.C.

           That's my submission regarding the question that should be put to British Columbians. Are you willing to pay for the damage done by MacMillan Bloedel and Weyerhaeuser?

           Thank you.

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

           The second-to-last presenter is Lee-Anne Dore. Again, you have five minutes.

           L. Dore: First of all, I want to thank the Snuneymuxw first nation for making it possible for me to be here this morning in their territory. I also want to acknowledge the government officials for this opportunity to have a voice at this forum.

           I wish with great fortitude that the naming of this forum was not referred to as a one-time opportunity for the public to have a voice in government to help get the treaty process back on track. It has been through exploitations of protocol and the lack of honouring the balance and the harmony that are missing from these procedures of treaty-making that this is up at this moment.

           With my education I am still ignorant and still coming to know my history which has destroyed with genocidal practices, in the name of democracy, millions and several generations of aboriginal people over a short period of time. You can hear the shaking and the nervousness in my voice, because I am near to tears and moved by this. I've come to learn of wampum, of two cultures that are supposed to ride side by side where neither is greater than the other and neither has power over the other. They are supposed to respect and live in harmony and balance. One is not to mitigate the reality of one over the other.

[1145]

           So I ask this question of the Ministry of Community, Aboriginal and Women's Services and my Liberal government. Rather than continue to mitigate the issues of aboriginal people and continue to set precedents that cause moral panic with motions of legislation in this one-time referendum, I suggest that rather than look at the details such as user rates, sewage, etc., the real issues are of natural resources and the real problem is for the government.

           Rather than negating the voices of first nations people, they should be the ones to negotiate the final treaty process. The nature of this referendum, which is really a farce, for the voices of first nations people are…. They're examples of living in harmony and balance with respect to the seventh generation plan, and sustainability far exceeds the practices that have been used by our government and that have failed. I ask you: how can this referendum continue? How can you continue to mitigate human rights?

           J. Les (Chair): That's it?

           L. Dore: That's it, yes.

           J. Les (Chair): Thank you for your presentation.

           The final presenter is Bruce Ferguson.

           B. Ferguson: How are you doing? I'm just going to read what I wrote here, and if you'll let me know when my time's up, then I'll paraphrase the rest.

           I'm Bruce Ferguson. I'm the zone 5 director of the United Native Nations Society, and zone 5 represents Vancouver Island and Powell River. Essentially, our mandate is for the off-reserve community. I'm actually not supposed to be here because we're boycotting this process. Can't you tell?

           I want to start out by outlining my understanding of what this process is about and what you want to achieve by listening to British Columbians. Last night I started rather ambitiously to read the minutes of your standing committee. I managed to get through August 29, September 5 and September 19, but at about 11 o'clock when I started reading Phil Steenkamp's presentation, I kind of fell asleep. At that time I decided a less detailed presentation may be more in order.

           I also want to say that I appreciate the work you've done in committee. The agonizing struggle over how this process would happen was apparent. I sense that while you may have wanted to consult four million British Columbians, your committee budget and time plan could not allow that. I don't envy the position you've found yourselves in. I also appreciate the fact that you have chosen Nanaimo as one of the communities to visit.

           My basic understanding of why we are here is anchored on the statement made by John Les on August 29. I'm assuming that this statement was further refined by subsequent meetings, but like I said, two hours of reading committee materials was about all I could take. I'm presenting from the perspective of what John Les had said.

           He said on August 29: "I think it's going to be important for us to frame the discussion, if you like, that we are indeed looking for suggestions. How can we improve the treaty process? What are people's points of view with respect to having watched, let's say, eight years of treaty-making? What has worked and what hasn't…? What we're about is improving that process, re-engaging British Columbians and, hopefully, reinvigorating and re-energizing that process." I'm assuming that's what we're here for.

           Towards those objectives, I thought I would present the official position of the United Native Nations Society, which is one of boycotting the process, and then move on to my own thoughts as Bruce Ferguson, the individual.

           United Native Nations Society's position on the proposed referendum is guided primarily by the constitution of the UNN and the inherent flaws in any referendum process. UNN refuses to participate in any legislative committee created to consult on the referendum process or question.

           UNN does not support the current B.C. treaty process, as it demands extinguishment of our title to our lands,

[ Page 514 ]

resources and peoples. Furthermore, it requires no compensation be awarded to our people as a result of the past and ongoing infringement on our aboriginal rights and title to our lands and resources. I think Clarence made a good point of that.

           Canada must revisit its federal comprehensive policy which charts the B.C. treaty process. Canada must also revisit the policy to be in accordance with the Supreme Court of Canada decisions: Delgamuukw, Sparrow, Marshall, Calder, to name a few.

[1150]

           This referendum process is not ours as an aboriginal people. Accordingly, we will be lobbying all aboriginal peoples to refuse to participate in the referendum. We are also recommending that all fair-minded non-aboriginal British Columbians that choose to participate in the referendum deliberately spoil their ballot as a sign of support to the real underlying issues that are currently unfolding: the imposition of a large, uninformed majority decision upon the rights and lives of a minority group in society.

           That is the official position of the organization I represent. Please don't ask me any questions, because I really don't understand a lot of the legal thinking behind it. All I know is that our leadership is asking us to boycott the actual referendum. I, too, will be boycotting and refusing to vote in this upcoming referendum, because I support the UNN in their thinking and the reasons for not participating.

           These include, and you've probably heard this in other forums: first, a referendum is a narrow and simplistic process that is not appropriate for dealing with complex dynamics and principles of a treaty relationship between aboriginal nations and the provincial and federal government. The Nisga'a agreement, though it is not part of the B.C. treaty process, has over 22 chapters and over 1,000 clauses. This begs the question: how can a simple referendum address the dynamics and issues concerning paramountcy of law, lands, resources and so forth?

           Secondly, referenda, like any survey, are vulnerable to manipulation if emotionally or politically charged language is deliberately used. Any opposition to individual principles or issues could negatively bias the overall results.

           Finally, referenda have a serious potential to impose the will of the oftentimes uninformed majority upon the minority. Democracy does not simply mean majority rule. The refusal of the white majority to grant South Africans equal voting rights and access to education in the 1960s reveals the negative implications of referenda for majority rule.

           Okay. Enough already of the official position. That's what the UNN is saying. That's what we're doing. I want to share my personal experience as reflected in my direct involvement with our struggle since 1979.

           The election is over, and we as a society have chosen to revisit the B.C. treaty process and the referendum. I know there are probably huge stakes in the process: who owns the land? Who gets the royalties? Does British Columbia have all the jurisdiction it thinks it has? I don't think British Columbians voted for the referendum agenda when they voted for your party.

           This process we are presently engaged in is not about aboriginal versus non-aboriginal. This is not about whether or not aboriginal people have rights under the constitution. This is about building consensus in society whereby aboriginal people are supported in restoring their rights to be aboriginal people and communities while maintaining what British Columbians have built for themselves in the last 100 or so years. This is about inclusion and fairness. It will build the foundation on how our peoples will live and work together in the future.

           What I think is a more appropriate interpretation of why we're even going through this exercise is that those of us in this room — and in fact the majority of aboriginal people and mainstream people or stakeholders — felt excluded from this process. The constitutional issues and implications and stuff like that, which I prefer to leave to the political representative groups and their lawyers…. I wrote this at 6:30 in the morning, so I missed something here.

           J. Les (Chair): You did all right, though.

           B. Ferguson: I want to get moving on the agenda of building communities that are inclusive, that share and that everyone contributes to. The B.C. treaty process will affect how aboriginal and non-aboriginal communities live together, and how we live together in post-treaty days is the most important factor for me.

           What I'm saying is that the exclusionary nature of the B.C. treaty process has to be changed, and that's not to change it structurally where all the investment of our communities is going to be lost. We need to understand that in a knowledge-based society, we will no longer — and I don't mean just aboriginal people; I mean all of us — accept being outside the processes that affect our lives.

           I was going to say that I am secretly happy, but I am happy — I guess you know about it now, eh? — that this process is challenging the status quo. Many of the concerns and frustrations expressed by British Columbians have their parallels in the aboriginal community. The treaty process, while it has honourable objectives, is a process out of touch with the mainstream and in fact the majority of urban aboriginal people and many aboriginal people living on the reserve. That structure or that emphasis has to be changed.           

[1155]

           Like your process of asking the people of British Columbia for a framework in which to proceed with the treaty process, that's the process that we need to develop, as well, within our own community.

           In the eight to ten years of the treaty process no one organization or government — can you imagine this? — has asked Bruce Ferguson what he thought. How is he affected as an off-reserve aboriginal person? Where is the urban aboriginal agenda in the B.C. treaty process? Where is our political representation in that process? How will future self-government structures handle the off-reserve and urban aboriginal communities?

[ Page 515 ]

           I believe that the exclusionary nature — not the constitutional implications that we all heard about, because nobody has the time to understand them, and that's not what we in the community, at a grass-roots level, really think about — of the treaty process is what bugs British Columbians the most. I want to emphasize the bigger issue of inclusion and exclusion in processes that affect all of our lives.

           I want to commend the Liberal government — and this is hard for me to do — for open cabinet meetings. I'm impressed with the Liberal handling of the government's website. There are clear changes happening with respect to transparency and accountability. I think that spirit needs to be extended to the treaty process. Further, I totally support a more broad-based participatory approach to making treaties that spell out aboriginal rights in this province.

           I also am pushing and hoping that the lesson learned here will be applied elsewhere in government. How many aboriginal people are appointed to the B.C. government's Crown corporations? How many aboriginal people are employed by the government of British Columbia? How many aboriginal people are selected to do committee work for government? How many aboriginal people are deputy ministers or work in the minister's office? You get my drift. Aboriginal people want to be involved with processes that may not seem to directly affect us. I think all of us have the right as citizens or residents of this province to be involved in whatever process or to find a way to have a stronger voice in all of the processes, in all of the things that government does.

           I want to highlight two initiatives that I've undertaken. For those of you who know me, what I'm working on is trying to find tools….

           J. Les (Chair): Bruce, two initiatives, two minutes.

           B. Ferguson: Now I know how that rabbit feels.

           I'm just looking at tools that we can think about as government and communities to increase participation of aboriginal people in government processes. I want to highlight two initiatives — and I can do this in two minutes — that I've undertaken. One is the aboriginal internship program for the Legislature. The other is a proposed UNN zone 5 working group at the Legislature. These two proposals are examples of how aboriginal people are trying to be heard by government. They start to work on the whole issue of giving us some voice in policies and processes out there.

           The working group at the Legislature is about creating a common agenda between the off-reserve community on Vancouver Island and in Powell River and the government of British Columbia. The preliminary indications from the government have been encouraging and supportive. There are mechanical and technical things that we need to do to start pursuing those objectives. I sense a strong commitment to them from Gordon Campbell and other cabinet ministers.

           These kinds of initiatives are working examples of how to deal with the challenge we face as British Columbians. It is a challenge for all of us to move out of our boxes and to create a bigger box, I guess. We need to build a province that is moving for all of its citizens towards a new economy and our knowledge-based society. The treaty-making process — in its new format, hopefully — is, I would argue, a key thrust in that direction.

           I want to end by telling you that I won't be participating in the referendum. While you're doing the referendum thing, I will be exploring ways our people can share our vision with the MLAs from Vancouver Island and Powell River. I will be thinking about ways we can support your government and aggressively pursue our fair share of federal dollars set aside for aboriginal peoples. I will also be working within the aboriginal community to build support towards the objectives of developing an agenda between ourselves and the MLAs on Vancouver Island and in Powell River.

           I wish you the best on developing your referendum question. I'm not going to help you with it. The truth is, I don't know either. My sympathies are with you for the work you need to do. I do look forward to a long and productive relationship with the zone 5 MLAs on this committee: Gillian Trumper, Mike Hunter and Rod Visser.

           Thank you.

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

           We're right up against the time allotment for this morning. It is exactly 12 noon. That means the committee has to hit the road and reconvene in Port Alberni. I want to thank everybody who has presented here this morning. Thank you for your patience, understanding and the collective input that you have provided. The meeting is now adjourned.

           The committee adjourned at 12 noon.

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