EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, October 26, 1995

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[English]

The Chairman: We'll call the meeting to order. We're here to respond to the House's request to review Bill C-107, which was passed at second reading on October 23.

Today we are hearing from the Department of Aboriginal Affairs and Northern Development. We have with us as presenters Mr. John Watson, regional director general of British Columbia region; Christine Cram, director of the program development and claims support directorate; and Brian Keogh, acting senior counsel for comprehensive claims.

Welcome today. I suppose you must know most of the members, so now that we know you, we will proceed with your presentation and then open it up to questions. The floor is yours.

Mr. John Watson (Regional Director General, British Columbia Region, Department of Aboriginal Affairs and Northern Development): Good morning, Mr. Chairman and members of the committee. For those of you I have not met, my name is John Watson; I am the regional director general for Indian Affairs in British Columbia.

I have a brief opening statement and then we'll deal in whatever manner the committee and the chair would like. I thought it would be useful if I provided a little bit of background on the British Columbia Treaty Commission and the process that is being put in place in British Columbia, as part of an opening statement.

The British Columbia Treaty Commission evolved out of the recommendations of what was called the B.C. Claims Task Force, which reported to both the federal and provincial governments and to first nations in British Columbia in 1991. That task force made a number of recommendations, all of which were accepted by both the federal and provincial cabinets. They included a recommendation to create an arm's length body in order to facilitate the treaty negotiation process in British Columbia. Treaty commissioners were appointed to begin work on the British Columbia Treaty Commission on an interim basis, having served since that time through Orders in Council.

Most of British Columbia, as many of you will know, is not covered by treaty settlements. Only a very small portion of the province has settlements; there are a few treaties on Vancouver Island and in the northeast corner of the province as part of Treaty 8. These lands continue to be the subject of litigation and other issues relating to aboriginal title and rights within traditional territories claimed by British Columbia first nations.

This has created uncertainty for governments and for industry in our province in that it has caused delays in economic activity. A Price Waterhouse study done about four years ago estimated that in just two sectors, forestry and mining, over $1 billion a year in investment was being lost in British Columbia because of the uncertainty surrounding the issues of title. Obviously, many hundreds of jobs were lost as a result of this uncertainty.

Therefore, from our perspective as the federal government, these claims must be settled in the most efficient manner possible, and we believe the British Columbia Treaty Commission, which will be created as a result of this legislation, is an effective vehicle to ensure the completion of treaties occurs more efficiently and the reconciliation with aboriginal people in British Columbia is achieved as a result of treaties.

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The BCTC process is unique in Canada, in that it provides a forum for the negotiation of modern treaties, which include issues both of governance and of the land and compensation issues. It also provides the opportunity to first nations to bring forward at the treaty table any issues they want to be dealt with as part of settlements.

The commission itself has a number of key functions, which are described in the legislation. Most important, from our perspective, is to assess the readiness to proceed of the three parties that come to individual treaty tables.

To that end, they have established a series of tests and criteria each of the parties must meet. Do they have a mandate? In the case of the federal government, do we have a consultative process with third parties and the public in place to ensure their input into the process is adequate? Have we identified a negotiator in order to proceed?

The commission is also responsible for allocating the funds that have been provided by both the federal and the provincial governments to first nations in order to ensure their participation. The first nations very much wanted a structure that would have an arm's length relationship so they did not feel the person they were negotiating with across the table as a negotiator was also controlling the funds they were borrowing from Canada as part of the negotiations. The commission maintains that key role.

Ensuring timely negotiations, to ensure parties don't subject the other parties to the process to undue delay.... They do that through their public reporting and other mechanisms.

They are also responsible for ensuring there is a public record on the status of negotiations. To that end, even without the federal legislation, they have provided two annual reports on their progress to date, pointing out areas where they feel the parties could make the process more efficient.

They can also assist the parties in dispute resolution at the request of the parties, to try to bring a fresh set of eyes and minds to a particular issue that is proving difficult.

They also report to Parliament on the status of negotiations so Parliament can monitor how well the process is working.

The commission itself has been operating since April 1993. It opened its doors in December 1993 to receive what are called ``statements of intent'', which are documents first nations present, stating their intention to negotiate a treaty, identifying what was their traditional territory, providing evidence that they have a mandate from their community to pursue negotiations. To date the British Columbia Treaty Commission has received nearly fifty statements of intent from across the province of British Columbia, representing just over 75% of the first nations population in British Columbia. The BCTC has been assessing the readiness of these parties and has moved a number of them into actual negotiations.

To date the following framework agreements have been signed by Minister Irwin and Minister Cashore on behalf of the federal and provincial governments: the Champagne-Aishihik, which is a transboundary claim flowing out of the Yukon agreement; the Sechelt framework agreement; the Gitksan framework agreement; and the Wet'Suwet'en framework agreement. There are four other agreements that have been initialled by negotiators and that will shortly be ready for signing by ministers. They are the Gitanyow framework agreement, the Teslin framework agreement, the Casca Dene framework agreement, and the Ditidaht framework agreement, on Vancouver Island.

The commission itself has individuals who are appointed and who represent the federal government, the provincial government, and first nations, and a commonly agreed upon chairperson. The current chairperson is Alec Robertson, former partner at Davis & Co. in Vancouver. The federally appointed commissioner is Peter Lusztig, former dean from the University of British Columbia. The provincial commissioner is the former deputy ombudsman in British Columbia, Barbara Fisher. The first-nations-appointed commissioners are Wilf Adam, from Babine Lake, near Burns Lake in British Columbia, and most recently Miles Richardson, who is the outgoing president of the Council of the Haida Nation.

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We would be pleased to deal with questions the chair directs to us.

[Translation]

The Chairman: Thank you very much for your presentation. I now invite Mr. Bachand to put his questions to you.

Mr. Bachand (Saint-Jean): My questions will be very brief.

Firstly, since negotiations in British Columbia are recognized as valid even in the absence of any enabling legislation, are we not being asked here to validate a law that is already implemented in fact in British Columbia? In other words, the bill that is before us reports on the work that has been done and all that is left for us to do is to comply with the spirit of the agreement that was signed at the time.

Secondly, when I went to British Columbia last summer, the First Nations I met with there told me that British Columbia and the Commission both felt that the key to the negotiations was the Nisga'a agreement, and those negotiations are at a standstill, it seems. So I would like you to give us the benefit of your advice on that. In order to ensure successful negotiations, would you not say that the bill is not the only important thing, but that the negotiations with the Nisga'a are equally important? Could you tell us more about the status of negotiations?

I would also appreciate hearing more about the situation with the Nisga'as, because they told me that things were not going well at all the last time I met them. The problem did not seem to lie with the federal government; rather, the government of British Columbia was balking.

[English]

Mr. Watson: In terms of answering the question of why legislation now, I think it is important to recognize there are three parties to this process: the British Columbia government, the First Nations Summit, and the federal government.

The agreement that was signed committed us to the process of introducing legislation into Parliament, and it also committed the First Nations Summit to presenting to the summit chiefs a resolution endorsing this process.

The other parties have done their pieces in this puzzle. Legislation has been passed in the British Columbia legislature, and this is the federal part of that commitment.

The legislation is seen as important, beyond the commitment made to introduce it, because first nations see it as making it more difficult for a future federal government to determine it would not negotiate treaties. In my business, it's always useful to look through the telescope from the opposite direction. From their perspective, they've been waiting over 100 years to have the land question dealt with. They feel that a very powerful signal of the commitment of Canada to dealing with that will be the passage of this legislation in the House of Commons. Establishing the commission will indicate that the supreme body, the federal Parliament, is committed to ensuring that this long-standing grievance will be dealt with.

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Administratively, it will make it much easier for the commission to operate. It currently operates really as individuals under Orders in Council, and upon passage of this legislation they will obviously have legal status as a commission.

For first nations the most powerful symbol is the passage of the legislation, because, particularly if it comes with all-party support, it will signal the commitment of all members in the House to ensure that this process will be dealt with, and dealt with fairly, by Canada and by British Columbia.

In terms of your question about the Nisga'a negotiations, there was an impasse this summer that related to a disagreement that we were having with the provincial government about the implementation of cost sharing. There is an existing cost-sharing memorandum of understanding between the federal and provincial governments that sets out a number of principles for how cost sharing will be dealt with, but a number of the procedures to implement those principles had not been put in place. In August the province decided that it was not going to proceed with negotiations with the Nisga'a until all of the outstanding issues, some of which are not germane to the Nisga'a treaty, will have been dealt with.

Our minister convinced them, over August and early September, to change their position. As a result of a commitment by us to try to fast-track a resolution of those issues - we've had very senior people in our department, including our deputy minister, meeting with provincial people - at the beginning of September, I believe it was September 11, the province announced that it was returning to the negotiating table with the Nisga'a and with Canada, and there have now been three successive weeks of negotiating. In fact, as we sit here today, they are negotiating in Vancouver.

In terms of the significance of the Nisga'a agreement, it will be seen as a very important signal. It will be the first modern treaty in British Columbia. It is one on which I believe all three parties want to see an agreement in principle so the public will be able to see that the impacts of the Nisga'a treaty do not affect other people's jobs and livelihoods and that progress can be made on this file.

We are hopeful that we will reach an agreement in the next few months, but obviously the negotiating table will determine that. We have a full federal team, as does the province, now back at the table with the Nisga'a, and the mood at the negotiating table is good. So we are hopeful that we will reach that objective.

[Translation]

The Chairman: Thank you. Mr. Bachand, we will now hear Mr. Duncan. If you need another round of questions, we will accommodate you.

[English]

Mr. Duncan, please.

Mr. Duncan (North Island - Powell River): The first thing I'd like to focus on is similar to Mr. Bachand's question, from the standpoint that we've had two succeeding B.C. treaty commission annual reports that have identified that the federal legislation was not forthcoming. I'm very puzzled by why this has taken so long to come before the House when it was identified as something that was lacking. It's a very straightforward bill. It's not something that would take a long time. Also, it very much mirrors the provincial legislation. There must be some reason why it was not brought forward, which is still not clear to me at this point. Perhaps we could first get that one out of the way.

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Mr. Watson: In terms of clause 5 of the legislation, the summit was concerned about an earlier version. First of all, I should say there was basic agreement on the legislation with the summit more than two years ago, with the exception of one clause. As I mentioned, the modern treaty process in British Columbia includes both the negotiation of governance arrangements and negotiation of the land question.

One of the earlier versions of the legislation had what were referred to as other related agreements. The summit was extremely concerned that in the absence of the federal government's commitment to the inherent right to self-government, other related agreements might be used to proceed with treaties in the absence of section 35 constitutional protection.

As a result, we were obligated to have the agreement of the other two parties to the legislation that we were to introduce. Once the government announced its intention to consult on the inherent right to self-government, they asked us to await the cabinet's decision regarding that policy before we introduced our legislation.

As you know, on that policy the minister announced the cabinet's decision relating to the inherent right to self-government this summer. We were able to serve notice to Parliament within a day or so of that announcement that we would be introducing the legislation this fall, which is why we are here now. So it really hung on that issue, Mr. Duncan.

Mr. Duncan: Can I get concurrence from you as a federal representative that there is no legal obligation to negotiate these treaties? It's just something that's being done because it's considered the right thing to do. Would that be a fair statement?

Mr. Brian Keogh (Acting Senior Counsel, Comprehensive Claims, Department of Aboriginal Affairs and Northern Development): Yes. We don't believe there's a legal obligation to negotiate treaties. It's being done as a matter of policy.

Mr. Duncan: Indeed, we may have some bands in British Columbia that choose not to do so.

Mr. Keogh: That's right. In that case our obligation is to follow what the courts have said concerning infringing or not infringing on aboriginal rights.

Mr. Duncan: Okay, fair enough.

There was some mention of the readiness to negotiate guidelines. Maybe I've missed this, but when the decision is made by the treaty commission - and I appreciate that you're not the treaty commission representatives - do they publish some sort of a report at the time that a set of negotiations is considered ready to be negotiated?

Mr. Watson: They publish the criteria that the parties must meet in order to advance to the next stage of the process to determine readiness. They do provide a written indication to me as a representative of the federal government indicating our readiness, and when all three parties are ready for a negotiation, they provide a notification to us. They clearly identify in their annual report where people are at in the various stages of the process. We can make that information available to the committee if it's not already been provided.

Mr. Duncan: We have that.

Mr. Watson: I don't believe I've ever seen a press release that says a particular group has been declared ready.

One of the key tests for the federal government as part of our readiness is ensuring that we have in place regional consultation committees that will represent any interests who may be impacted by treaties. So certainly people in the local area, municipalities, and people involved in industries who may be interested in the state of negotiations would be aware and would in all likelihood be members of that committee.

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Quite frankly, I'm not positive they provide a quarterly report on that. If the treaty commission appears as witnesses you might want to ask them that.

Mr. Duncan: It occurs to me they may indeed be somewhat subjective. I have never been able to measure that, because I've never seen one. But they may exist.

About timing, some people are concerned that these commissions and these negotiations will be never-ending. There's no sunset clause in this agreement. There's no sense of urgency that's apparent in any of the internal workings that are evident publicly. Further to that, we have such things as the provincial government putting in interim measures that are making it even more certain, in many people's view, that it will contribute to the lack of urgency of the negotiations. Does the federal department share that concern, and do you see a way to try to fix it?

Mr. Watson: It's obviously our desire to make the process as efficient and speedy as possible...recognizing there are complex issues to be dealt with and at the end of the day it's reconciliation with aboriginal people and the certainty that will come to other British Columbians that will be the real product of success.

The British Columbia Treaty Commission in its most recent report, which the minister has tabled in Parliament, actually makes the reverse observation, that people are moving through the process quicker than had been anticipated by the two governments. The participation rate is high. More than 10% of those that are in the process now have signed framework agreements. With the additional ones that are waiting to be signed, that will be a quarter of those that entered the process just a year and seven months ago.

So there is progress. But I can't predict a date by which there will be treaties with all first nations in British Columbia.

The agreement does provide for the parties to determine whether the commission continues to play a useful role in the event that treaties are negotiated, and a few are still to be negotiated. But we are committed to making the process as efficient as possible and feel we are achieving that.

Mr. Duncan: About these interim agreements, the treaty commission itself has identified that these provincial interim agreements have compromised negotiations, in their view, on some occasions. Once again, I recognize you're not the B.C. treaty commissioner, but what avenue does the treaty commission have? Does it have any avenue at all? Is it able to take any action, other than to identify that this is a concern? From the public standpoint, statements like that, and the way these interim agreements have been negotiated - and many of them have been negotiated completely outside the treaty commission process - are a major black mark on this whole process. The whole process becomes illegitimate, in their view, simply because of these agreements. It's also been identified as being a problem by the treaty commission. Do you see they have anything they can actually do about it?

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Mr. Watson: I don't pretend to speak for the provincial government. I believe that, as a result of the comments they've received from the British Columbia Treaty Commission, and in fact from the treaty negotiating advisory committee, which is the province-wide body that represents other interests in the treaty process, the province has introduced new measures to ensure there will be prior consultation with affected groups.

I think if the province was sitting here they would say to you that they feel they were implementing interim measures agreements as a result of obligations that the Delgamuukw court case brought to bear on the province, which required that it put in place prior consultation mechanisms with first nations to ensure that their views would be known prior to the province entering into decisions that relate to resource developments or other developments.

But I don't feel that I can comment on the province's aspects of interim measures.

Mr. Duncan: I appreciate that.

Mr. Watson: As a result of Minister Irwin's announcements around openness of the process, we have committed to consult with any impacted third party in the event that the federal government, in an area of its jurisdiction, was to introduce interim measures. I think that from our perspective we need to ensure that we shall do that. That has occurred in the areas where interim measures may be contemplated by the federal government.

Mr. Finlay (Oxford): Being new to this committee, I need a little bit of information about some of the terms you used.

With respect to these tests and criteria that the commission has established to determine whether the parties are ready to negotiate in a meaningful way, I think that in answer to Mr. Duncan's question you said that was published, or we could have a copy of that, or we already have a copy of that.

Mr. Watson: They certainly published their readiness criteria.

The treaty process, as agreed to by the three parties, has six stages. One of the stages involves the treaty commission determining the readiness of the parties to negotiate. For the two governments and for first nations, the treaty commission developed specific criteria to ensure that the parties would follow a set procedure.

I believe it has been published in their annual report. But if it's not, then certainly they are public documents and we can ensure that the committee has copies of that. I'm not sure whether it has already been provided or not.

Mr. Finlay: I would appreciate that.

You used the term ``certainty'' early in your introduction, and we've heard from Mr. Hamilton about ``certainty'' and ``extinguishment''. You didn't mention ``extinguishment'', and I presume that's because of clause 35 and the inherent right of self-government.

Mr. Keogh: We're presently reviewing Mr. Hamilton's report, but that doesn't stand as the present government policy at this stage.

The treaty will have to reflect the party's intentions respecting certainty. In all treaties up to now, this has been done through a surrender clause, which has provided extinguishment.

Whether or not this will change will have to be decided by the two governments that will be parties to these treaties, because at the end of the day both governments will require certainty and we'll have to have an acceptable mechanism for them.

Mr. Finlay: All right. I thank you for that answer, but what about the third party involved, the first nations?

Mr. Keogh: Whatever mechanism is chosen will have to be acceptable to all three parties.

Mr. Finlay: All right. You said that the provincial and federal governments will decide. We had better keep all three parties in our minds when we're dealing with it.

You said that there have been four framework agreements, Mr. Watson. Is that a final agreement? What's a framework agreement as opposed to a treaty?

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Mr. Watson: The six-stage process involves the filing of a statement of intent, the determination of readiness, and the signing of a framework agreement that is really the agenda of which subjects the parties are going to negotiate. Then there's an agreement in principle between the parties subject to ratification in both Parliament and the B.C. legislature and by members of that first nation. Then there is the final agreement.

A framework agreement essentially sets the agenda for negotiations and determines which subjects the parties have agreed to discuss and negotiate in the context of a treaty.

Mr. Finlay: So in a sense it's halfway along or it's the third stage. It's not a final stage at all.

Mr. Watson: That's right.

Mr. Finlay: In answer to Mr. Bachand about the Nisga'a agreement, you mentioned regional consultation committees, and I presume the three parties are at the negotiating table. What is the make-up at the negotiating table?

In earlier work with respect to the James Bay Cree and Quebec agreement, which had some co-management things set up in it, the Cree were not the least bit happy with the way it was working out. In the committee hearings we had they blamed the federal government for tending to absent itself from the co-management discussions, so they were between the Cree and Quebec. It simply wasn't working and they didn't feel they were co-managing anything; they were being overruled.

Who is at the table? Is it a three-party arrangement so the government has all the power, or is it a two-party arrangement?

Mr. Watson: At the individual treaty negotiation tables, the 40-plus tables that exist in British Columbia, there would be three parties at the table. The first nations are involved and they are free to determine the composition of their team.

A federal team is led by a chief federal negotiator who represents the federal government's interests. That individual is supported by a federal caucus that involves all federal departments whose interests may relate to the treaty, so that individual has not only a mandate, but also has the advice and guidance of specialists and experts within the full federal system.

The provincial government has constructed a similar team. Since September of last year it has offered a seat to a representative of municipal government as a member of its negotiating team. That's really a creation of the province. Where there are a number of municipalities represented, the municipalities choose an individual to represent them from a regional district. The decision is theirs.

There are three official parties at the table, but the three parties have a number of individuals supporting them both at the table and in other bodies to provide advice and guidance. So it really is a government-to-government negotiation.

Mr. Finlay: There are the two governments and the first nation.

Mr. Watson: That's right.

Mr. Finlay: In this bill before us in subclause 12(2) it says:

(2) Decisions of the Commission shall be made by agreement of at least one commissioner appointed by each of the Governor in Council, the Lieutenant Governor in Council and the Summit.

That suggests to me that any one of the three parties, in essence, has a power of veto.

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Mr. Keogh: We should distinguish this, though, from the treaties that will have all parties at the table as opposed to the decisions of the summit, which is just to facilitate the negotiations. The commission can't make decisions respecting the ultimate treaties, which have to be acceptable to all parties.

Mr. Finlay: I quite agree. I merely want to suggest that each of the three groups has a power of veto over the decisions of the commission. At the negotiating table, do each of the parties have a power of veto over what is agreed to?

Mr. Keogh: Yes. The final treaty has to be agreed to by all three parties.

Mr. Finlay: Thank you.

The Chairman: The request was made of you to provide a document. I ask you to forward to our clerk, Mr. Farrell, either sufficient numbers for all members of the committee or one copy to be reproduced so that what one has everybody has.

Mr. Watson: Yes. This would be the criteria the treaty commission uses to determine readiness.

The Chairman: Thank you.

I've just been advised that we've all received it. We have it in the annual report.

Mr. Watson: Okay.

The Chairman: That's how fast we get information.

Mr. Jackson.

Mr. Jackson (Bruce - Grey): Mr. Chairman, Mr. Finlay stole most of my questions, but the one important one is about benchmarks. I think they have these claims throughout the country, and I'm glad to see that they have things like extinguishment to make sure that perhaps they don't reoccur.

What kind of benchmarks are you setting up and how long are these processes going to take? Do you have time lines with regard to how long a particular agreement might be or is it open-ended?

Mr. Watson: The expectation has been expressed that we would conclude all treaties by the end of this century. Whether that's achievable or not is really a product of how well the negotiations go. As I said, there are almost fifty statements of intent that have been filed covering nearly 80% of the first nations' population in the province.

We are working with the summit in a number of areas to try to make the process more efficient around particular subject areas so that at each of those nearly fifty tables one doesn't have to revisit each of the issues.

For example, the summit has proposed to both governments that in the area of education jurisdiction it would be useful to develop some approaches and some models for how the education jurisdiction might apply in post-treaty British Columbia and to provide in essence some boiler-plate clauses - if I can use that term, I'm sure first nations wouldn't - and some options for how the education jurisdiction might be negotiated.

Similarly, there are a number of other proposals they've made and governments have made around how to make the process more efficient so that there is compatibility. But I can't predict with any degree of certainty when all treaties will be negotiated in the province.

As I said, the treaty commission's last annual report makes it clear that people are moving through the process more quickly than was envisioned, so I think that's a positive sign in the sense that it's not going more slowly than what was envisioned.

But as Mr. Bachand pointed out, the symbolism of getting an agreement with the Nisga'a is important from that perspective in that it will be taken as a strong signal that the process works. It will create an important signal to other first nations that this is what a modern treaty will look like, and to other British Columbians who can see how their interests are protected and not impacted and how it ends up being a win-win situation for all parties. I think that hopefully will occur in the near future and we will be able to make even faster progress.

But I would be very reticent to hazard a guess. Some first nations that have not entered the process have said to us they're really waiting to see how we deal with other groups in the process. Others have expressed the view that they don't wish to negotiate treaties using this process.

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It's a process that is voluntary. We do not compel groups to negotiate treaties. It's not one that is totally within our control to manage. There are three parties to the process.

Mr. Jackson: Okay. A couple of other questions. The summit group: do they have all the claims in so there will not be any cross-claims or any cross-jurisdictional kinds of problems? Do you look at that as a part of the thing?

The second one is what happens with those treaties that nobody wants to negotiate? Do they just stay like that and they're interpreted by lawyers?

Mr. Watson: The summit's a voluntary body. It's really the chiefs meeting in summit, or in a forum. They don't have a mandate to compel individual first nations to do particular things. They speak on behalf of the chiefs. Essentially they are a forum that represents the chiefs in that context.

Mr. Jackson: Do they represent all groups?

Mr. Watson: No, they don't. There is also the Union of B.C. Indian Chiefs in British Columbia. They have said as a matter of policy they do not believe in the British Columbia treaty process. Notwithstanding that, a number of members of the Union of B.C. Indian Chiefs have filed statements of intent to negotiate treaties. So I think it's a political position rather than a position all their members may choose to follow. But no process we have envisioned would force people to negotiate treaties.

Mr. Jackson: The other part I asked, of course, is in the case where nobody makes a move on a treaty, does it just stay there dormant; nothing happens to it?

Mr. Watson: What we're dealing with in British Columbia is the absence of treaties. As I said in my opening remarks, there are treaties only in the northeast corner of British Columbia as part of Treaty 8, related to Alberta and parts of Saskatchewan and the Northwest Territories, involving the Dawson Creek, Fort St. John, Fort Nelson area of British Columbia, and a few treaties on Vancouver Island, called the Douglas treaties, that were negotiated. In the rest of the province treaties were never negotiated. What we're dealing with is a historic anomaly in Canada, the absence of treaties. It is the 100-plus years of petitioning by first nations that really gave rise to the decision to embark on this process.

The first nations refer to it as ``unfinished business'', and I think in many respects that's what it is. We hope it is really about defining the relationship between first nations for the 21st century rather than defining the relationship as it would have been in the 19th century. I hope at the end of the day it does end up being future oriented and allows us to deal with ensuring there really are modern creations that people live with.

Mr. Jackson: A comment more than a question. The problem is in the good old days nobody knew what the old-timers did. They were sitting around their fire smoking whatever they were smoking and the techniques and so on were very different. When they fished and hunted they had canoes and spears and what not. Now there are sophisticated techniques for doing things. Of course, one of the most significant things is the rise in the aboriginal population now is faster than in most of the general population. It's going to create more problems. So you have to look to that 21st century solution rather than the past.

Good luck.

Mr. Watson: Thank you.

The Chairman: Dr. Fry.

Ms Fry (Vancouver Centre): There have been statements from the provincial government in the newspapers about a total dollar value for the treaty claims in B.C. I wonder if you could elaborate on that. Has a total dollar value been put on it? Can one put a total dollar value on the claims in B.C.?

Mr. Watson: Yes, one can estimate, I suppose, what the cost of treaties is going to be. It has not been our practice to advertise it, so as you will have seen from the press reports, we were somewhat taken back by the provincial minister's decision to tell The Vancouver Sun editorial board what he believes the cost of treaties will be over the next 20 years.

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We have not seen the study that the province used in order to develop its numbers.

Obviously, we're obligated to tell cabinet, and each of our negotiators is required to get from cabinet a mandate as it relates to individual negotiations that would occur.

I suppose there is some disagreement about the strategy that the province has used, but I can't really comment on its numbers, other than to say that they're higher than the numbers we have been using internally. They have promised us a copy of the study within the next month, but I haven't seen it, so I'm not sure that I know precisely what it's based on. I've had a verbal description in the last four or five days since this issue arose from the province as to what makes up their study. I gather that it's actually not a completed study, so we're looking forward to seeing it.

Ms Fry: In other words, you're saying that if you don't have any access to how they arrived at that figure, it's almost inconsistent with negotiating principles for one party in negotiations to come up with a figure all by themselves. Is that what you're saying?

Mr. Watson: I guess there are several inconsistent aspects.

One is the federal-provincial agreement around cost sharing. So, clearly, the federal and provincial governments need to consult on this issue.

In terms of individual mandates, both governments need to agree on what is going to be offered to the first nation party in advance of a negotiation, obviously, to ensure consistency.

The third point is that strategically we're not certain about how helpful it is to have what the anticipated settlement figures are going to be announced in public so that everybody can do the mathematics. If we could predetermine what a treaty was going to look like, what would be acceptable to the other parties, and what the costs of compensation were going to be, then I think we should just go out and sign it.

Ms Fry: Not bother to negotiate.

Mr. Watson: I think the days of going to first nations and asking them to put their X on a treaty are long gone. They are very well represented by competent counsel and many of them are experienced negotiators around these issues. I don't think one can predetermine the outcome of negotiations.

But we do planning numbers internally. We're obligated to, obviously, in order to keep Treasury Board and Finance happy.

Also, we are obligated to obtain mandates from cabinet for each of the negotiations prior to putting forward to first nations any kind of financial numbers, or indeed the content of treaties.

Ms Fry: My other question has to do with something completely different. Obviously, in British Columbia at the moment there's a great deal of concern amongst private individuals who feel that their homes will be taken away from them, their farmland, etc. Can you comment on that? What is on the table in terms of that kind of thing, and what is not on the table?

Mr. Watson: Most of the land that's on the table of course is under provincial, not federal, jurisdiction. There's very little federal crown, federally held, land in British Columbia, I guess with the exception of the reserves and various military properties. Most of the land is under provincial jurisdiction.

What the province has said is that private property is not on the table, that land owned by individuals will not be subject to negotiation. That was announced by the current premier in September of last year as part of a number of commitments that were made.

As I said earlier, one of our real challenges in this process is to ensure good public education. We have participated in the last year in over 400 forums across British Columbia, sponsored by other parties, universities, community colleges, chambers of commerce, various associations, as well as ones that have been organized by governments to try to ensure that the public understand what this treaty process is, what it's designed to do, and how their interests are taken care of in the process. The province has made it clear that private property is not on the table and will not be subject to negotiation.

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Ms Fry: Maybe someone should give some of that education to the media in British Columbia, who seem to enjoy misinformation, an anxiety-producing misinformation that tends to create this kind of uncertainty amongst the public.

The Chairman: Thank you.

We will offer a second round if needed - I repeat, if needed. Each member will get five minutes, and that includes the question and the answer.

[Translation]

Mr. Bachand: I know that participation in the Commission's process is voluntary and that some 50 bands out of a possible 198 have decided to get involved. In another connection, when I look at the statement of intent, I see that the designated geographical area, i.e. the territory involved in the claim, represents, according to Mr. Duncan, 125 percent of the area covered by British Columbia.

Earlier, I heard you say that the government's reaction to those who do not wish to comply with the Commission process would depend on decisions, handed down by the courts.

Let me quote a specific example: the Carrier-Sekani. They have reached the second phase of their negotiations, and their land claims with those of the Chilcotin, who are not mentioned in the statement of intent.

Can you explain how you intend to take the claims of both parties into account since one is involved in the commission process and the other is not? To me, that would appear difficult.

I also wonder whether the Commission was not invented to force the bands to participate in its processes, thus making it possible to impose some kind of order on land claims, because it seems obvious to me that British Columbia cannot accept claims to 125 percent of its territory.

[English]

The Chairman: Can you answer that in two minutes?

Mr. Watson: First of all, I have one point of clarification. There are nearly 50 statements of intent, but they represent about 135 Indian bands. For example, the Carrier-Sekani that you referenced includes a number of individual Indian bands. So the participation rate is much more than 50 of 196.

In terms of the specific questions you asked around overlaps, we do say that it is up to the first nations to deal with any overlaps that occur with their neighbours in this process. In fact, a number of them are establishing protocols or processes to try to deal with that. Canada will not finalize a treaty until it is clear that this issue is resolved. It is obviously critical in terms of achieving certainty that the issue is resolved.

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Our belief is that eventually all first nations will see the wisdom of embarking on treaty negotiations, but as I've said to other speakers, we can't compel them to do so. Many of the chiefs whose first nations have not filed statements of intent tell me privately that they are waiting to see what we do with other groups. They want to know whether the process actually works, whether there is product that comes out of the process, that it isn't just a process that gets them talking to government, and that actually first nations are able to achieve the recognition and the reconciliation with Canada and British Columbia that all first nations state they desire.

Every month more statements of intent flow in. Just a year ago, less than 50% of first nations were in the process. Our challenge is not to get everybody involved in the process but rather to get product out of the process, which is to ensure that there are good treaties that all parties can understand.

I can see I'm taking longer than two minutes.

The Chairman: A bureaucrat is talking longer than a politician. This is history.

Mr. Watson: Sorry.

The Chairman: Carry on.

Mr. Watson: One of the key challenges for us is to ensure that the first nations, where there are overlaps, do in fact have a process in place where that issue has been satisfactorily resolved.

The Chairman: Thank you.

Mr. Duncan, do you have a question? You have five minutes.

Mr. Duncan: I spent some time talking about interim agreements earlier, and we talked in the provincial domain. You tended to deny that the federal government has any interim agreements. In name maybe the federal government has no agreements, but they do have the biggest interim agreement from the public's viewpoint, and that is the aboriginal fisheries strategy.

My question relates to the overlap between the DFO and the treaty process federally. The DFO has a licence buy-back program under the AFS. This year in my area, for example, they spent $2 million buying one licence, a spawn on kelp licence. According to the minister, there are no current plans as to where that's going to go. The suspicion throughout the public that is aware of these is that these are already earmarked for the treaty negotiation process and they're virtually committed.

How much overlap is there between the federal Department of Indian Affairs and the DFO in terms of the treaty negotiations, and is that formalized? If so, at what level?

Mr. Watson: There's substantial collaboration with the Department of Fisheries. It occurs at a variety of different levels. The Department of Fisheries and Oceans, along with fourteen other federal departments, is a member of the federal caucus that advises all of our negotiators on treaties in British Columbia, so they clearly participate in that forum.

We also have a working group with Fisheries that looks at issues related to fisheries, specifically in the aboriginal context. I meet regularly with my counterpart in Vancouver, Mr. Tousignant, and with Pat Chamut, the assistant deputy minister of fisheries operations here in Ottawa, on various issues relating to first nations and the fishery.

Mr. Duncan: Does that group have a name? Is it just ad hoc?

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Mr. Watson: I think it's just ad hoc.

I should also indicate that on the Treaty Negotiations Advisory Committee there are at least five representatives of the 31 from the fishing sector.

Mr. Duncan: I appreciate that.

Mr. Watson: I can rhyme them off if I think about it, but to name a couple, there's the Fisheries Council and the United Fishermen and Allied Workers' Union. A number of organizations are represented on the Treaty Negotiations Advisory Committee, so they're quite plugged into the formulation of a strategy from an industry perspective.

Mr. Duncan: At what point in the government's mandate do you perceive that treaty negotiations would basically halt, awaiting a new mandate? I know it's a politically charged question, but....

Mr. Watson: I think you should probably ask a politician that question. I've never received any instructions that I was to halt at any particular point in time.

Mr. Duncan: And you wouldn't anticipate receiving those instructions?

Mr. Watson: No. Our instructions from our minister have been quite clear: ``Get on with it and get it done. It is the one key issue in British Columbia that aboriginal people have universally said is unfinished business, so get on with resolving the land question in British Columbia and ensure that you get it done, Mr. Watson.''

Mr. Duncan: You appreciate that for some of these questions I just want to get a response on the record.

In some of the earlier agreements that have been negotiated there is what's called a ratchet clause. If an ensuing agreement with another band or tribal group is more generous in some respect, then the earlier agreement will be topped up to bring it up to par. Do you foresee that this is the likelihood in the B.C. treaty negotiation process?

Ms Christine Cram (Director, Program Development and Claims Support Directorate, Department of Aboriginal Affairs and Northern Development): I think you're referring to what we call the ``most favoured nation'' clause that's in the Council for Yukon Indians agreement.

Mr. Duncan: It's certainly in that one, yes.

Ms Cram: We don't intend to follow that approach in B.C. treaties, but as treaties are matters for negotiation, I guess one would have to see what unfolds.

Mr. Duncan: My point would be if it is going to be in there, then you might as well just negotiate the last agreement first; then you don't need all the rest.

Mr. Watson: If you could tell us which was going to be the last one, we might follow that.

Mr. Duncan: Well, we could start a lottery here or something.

You've been told that in a month you'll be receiving the provincial study you mentioned. Can I assume that when you get that, it will be in the public domain? Or can you not comment on that until you know what terms it's given to you under?

Mr. Watson: My understanding is Minister Cashore told The Vancouver Sun that it would be public in a month, along with some other studies the province is doing that relate to the benefits, particularly the regional or subregional benefits, of treaty settlements. As well, some anecdotal evidence of the impacts of treaty settlements in other parts of Canada and other parts of the world may be made available so that not only the costs are understood but also the benefits. My understanding is it is the intention to release those studies to the public.

Mr. Duncan: This is probably more by way of comment than question, but in reference to the question that was asked by my colleague, Ms Fry, on costs, if you look at the memorandum of understanding on sharing of costs, it is not rocket science. I've done an analysis, albeit based on the leaked offer to the Nisga'a. By my estimates, which have never been challenged, it came out at a cost of $97,000 per capita.

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That's documented. I'd be happy to provide it to you or to the committee. Those estimates very closely correspond with the estimates of Mr. Cashore.

Above and beyond that, my estimates exclude the costs of compensating bands for private lands. You did mention private lands. True, they're not on the table, but the provincial government has made a commitment to compensate the bands for any private lands within their settlement area.

So to deny the provincial minister's cost in my view is premature, because it is not a difficult thing to document. If one assumes the leaked Nisga'a offer is incorrect, if it's inflated by double, then my estimates are inflated by double. But it's never been challenged in that offer as incorrect either.

The Chairman: And now we'll get back to bill C-107. Mr. Finlay.

Mr. Finlay: Again I need a little help. In answer to a question from Mr. Jackson, you said, Mr. Watson, the problem in B.C. is that there are very few treaties. I'm going to ask a very simple question. How was the land settled, then? Captain Cook arrived, then later Lord Astor, then there was the gold rush, and so on. I'm not aware of a great deal of bloodshed, but there's certainly discontent on the part of the first nations at present.

You also said most of the land is provincial. Was it bought? Was it simply claimed?

Mr. Watson: About the history, there was a policy to negotiate treaties, but it really ended up being abandoned in British Columbia. Governor Douglas, as I said, as one of the colonial governors did negotiate some treaties.

About the land becoming provincial crown land, that occurred at the time British Columbia joined Confederation. But subsequent courts have found, in various degrees of consent, that the question of the nature of remaining aboriginal interest in the land is something that should be negotiated by governments. It's based on those court cases, all of which have emanated from British Columbia, going back to the Calder case and more recently the Delgamuukw case, that governments have embarked on a process of dealing with this issue through negotiation rather than in the courts, principally because the courts have told us it's better sorted through negotiation than dealt with in courts.

Mr. Finlay: Thank you very much.

The other question, which you partially answered in your answer to Mr. Duncan, was that you made the statement that the province has said private property is not on the table, but the actions of certain first nations have made private property very much on the table, such as Jefferson Lake. Do they mean it's not on the table because it will be compensated for, or do they mean somehow or other, unilaterally, it's outside negotiations?

Mr. Watson: Yes, the cost-sharing memorandum of understanding provides for the two governments to compensate any third parties whose interests may be affected. For example, if somebody is a holder of a tree farm licence and at the end of the day, following a consultation process and a treaty negotiation with first nations, it's determined that the interests in that tree farm licence should be bought out, then the third parties will be compensated for those interests.

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I suppose if somebody wanted to sell their land as part of a treaty negotiation process and it was a desirable outcome, there are provisions in the cost-sharing memorandum of understanding to compensate third parties in that process.

I would also point out that Gustafson Lake was not a treaty negotiation process. It was a unilateral action by some individuals asserting that the particular site in question was sacred. I think we're all aware of the circumstances.

In fact, the local leadership from that area have distanced themselves from that action in no uncertain terms and have said that's not the way in which they wish to negotiate these issues.

It is precisely because of the desire of achieving certainty as to what land is whose that we are into this process.

Mr. Finlay: What land is whose? If I am understanding it, the first nations feel fairly definitely that the land was theirs at the beginning and, since it hasn't been ceded by treaty or purchased or whatever, it's still theirs.

We're the ones who bring in the whole idea of property rights, etc.

Mr. Watson: The government's view is that the Crown owns land or it has in fact been transferred by legitimate means in fee simple ownership to individuals.

Virtually all first nations accept that private property is not on the table. Very few have questioned that pronouncement. They may ask, in a historical sense, how did the Crown come into possession of this? However, in practical terms hopefully we're negotiating treaties that will define the relationship, what jurisdictions will apply on which bits of land and to which individuals for the 21st century, not looking back and trying to recreate historical might-have-beens. We were trying to define what the modern relationship is going to be with first nations that will allow them to exercise in a modern way jurisdictions that will ensure the survival of their culture and languages and will provide them with the capacity to become full economic partners in the province of British Columbia and the country of Canada.

Mr. Finlay: Under this specific land claims policy, as Mr. Duncan has pointed out, some compensation is involved.

Mr. Watson: Yes.

Ms Fry: I want to make a quick comment on the amount of money the provincial government has said...and the calculations made by Mr. Duncan with regard to a per capita sum. I think I knew the answer to those questions initially, but I asked them to put them on the record, purely because there has been such misinformation and anxiety surrounding them.

As a person who has been a negotiator in the past, I suggest that to sit and calculate a per capita sum that would eventually go to everyone negates the whole process of negotiation. If one is going to start in the negotiation by saying, ``At the end of it this is what's going to happen'', then there is no negotiation, really. It's just a farce.

So anyone who would like to put a per capita cost or say, ``This is what is going to happen at the end'', really doesn't understand negotiations and is jumping the gun.

The Chairman: I thank all three of you: Ms Cram, Mr. Keogh, and especially you, Mr. Watson.

On very short notice, this bill was sent to us on October 23; today is the 26th. An objective of this committee is to prove to the world that not everything takes time in Ottawa. Our next session will be on November 9. We will be hearing witnesses and, thanks to your agreement to come on short notice, we're able to be as efficient as we would like to try to be.

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Thank you. We're adjourned.