First Statement in Senate    Nisga'a Agreement

First statement in Senate -- February 8, 2000

Honourable senators, this is my first statement in the Senate. I am honoured to rise on behalf of the people of the Northwest Territories. On January 25 and 26 of this year, chiefs and other aboriginal leaders met in Fort Liard in the Northwest Territories to discuss oil and gas development issues and, particularly, the prospects of a Mackenzie Valley pipeline from the Arctic to southern Canada and the United States. Members may recall that in the mid-1970s a huge gas pipeline was proposed to be built by multinational corporations down the Mackenzie Valley to bring Arctic-Alaskan natural gas to southern markets.

That issue prompted the federal government to establish the Berger inquiry, which dealt with numerous issues surrounding the construction of a Mackenzie Valley pipeline. Mr. Thomas Berger, at the conclusion of the inquiry, stated:

...that if a pipeline were built now in the Mackenzie, its economic benefits would be limited, its social impact devastating and it would frustrate the goals of native claims.

Mr. Berger concluded that there ought to be a 10-year moratorium on the construction of a gas pipeline. The government of the day abided by the recommendations and no pipeline was built.

It has been approximately 23 years since Mr. Berger made his recommendations, and many positive changes have occurred for the peoples of the North.

Aboriginal peoples of the North are much more able to deal with developments such as mines and pipelines. Education level, experience in technological work and confidence of people to take part in development has grown. Land claims have been or are being settled with most of the aboriginal peoples of the North. Government of the Northwest Territories has evolved into responsible government. People have experience with oil and gas development and small pipelines.

People generally are better able to deal with developments such as large pipelines that are being proposed, once again, in the Mackenzie Valley. Therefore, at the Liard meeting, the chiefs passed the following motion:

We, the Aboriginal Peoples of the Northwest Territories, agree in principle to build a business partnership to maximize ownership and benefits of a Mackenzie Valley pipeline.

The message that the chiefs and the aboriginal leaders wish to make is that, yes, times have changed. Aboriginal peoples are no longer opposing projects, such as huge gas pipelines traversing their lands. However, they intend to be involved in all aspects of the project - the planning, the route selection, construction and, most important, ownership of the pipeline.

Honourable senators, the stance of this motion is significant for all peoples of the North. Those of us who have been involved in government and the politics of the North know the difficult times that aboriginal peoples of the North have gone through the past few decades. It has been a struggle for their rights and to gain their rightful place in northern society. This motion marks the start of a new era of hope and a willingness to participate as partners, not to be bystanders in economic projects such as massive gas pipelines. If governments and the oil and gas producers can heed this new approach and be willing partners, the future of the North bodes well for all people living in the Northwest Territories.

Top of Page

Speeches on the Nisga'a Final Agreement Act

April 5, 2000

Honourable senators, I am pleased to speak today in support of the Nisga'a bill. For me it is a very emotional matter to see a group of aboriginal people obtain a land claims agreement or modern treaty. It has been a long road and a big struggle for the Nisga'a. It is a credit to them and a credit to Parliament and to our country that such a claim as this can happen.

Honourable senators, I first heard of the Nisga'a people and their claims when I was a younger man attending law school. In my study of "native rights," as it was then called, I came across the Calder case, which was a landmark case in the Canadian legal system on aboriginal rights. In this case the Nisga'a people, represented by Thomas Berger, brought a case against the Attorney General of British Columbia for a declaration that "Aboriginal Title for certain lands in The Nass Valley had never been extinguished." The Supreme Court then reviewed the cases on the subject and referred to a very famous case in the United States, Johnson v. McIntosh. It outlined the law as it then was, being:

...that on discovery or on conquest, the aborigines of newly-found lands were conceded to be rightful occupants of the soil with a legal as well as a just claim to retain possession of it and use it according to their discretion.

This was the view of the United States court and it was adopted by the Supreme Court at the time.

Justice Judson stated that any Canadian inquiry into the nature of Indian title must begin with the 1888 St. Catharine's Milling case, which recognized Indian title as being a "usufructuary" title, which then was described as a right to use the land for hunting and fishing but which title was vested in the Crown. The court recognized the existence of aboriginal rights in part stemmed from the Royal Proclamation of 1763, which stated the British policy of dealing with aboriginal peoples in North America and the general recognition that:

...when settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.

This is what Indian title meant then. Obviously, the discussion and the demarcation of aboriginal rights since those dates have advanced.

The Calder case was clear on the existence of aboriginal rights but was split on whether those rights were extinguished by government action up to that time. The Calder case was instrumental in changing government policy because, a few years earlier, in 1969, former prime minister Trudeau had cast some doubt on the notion of aboriginal title and whether Canadians would follow a policy to recognize such rights. In a speech that he gave in Vancouver, Mr. Trudeau said:

It's inconceivable, I think, that in a given society one section of the society have a treaty with the other section of the society.

However, "aboriginal rights" really means, "We were here before you. You came and took the land from us and perhaps you cheated us by giving us some worthless things in return for vast expanses of land and we want to reopen this question." Mr. Trudeau then said, "Our answer is no."

That was former prime minister Trudeau back in 1969. Fortunately, because of the Calder case, the pendulum has swung the other way, to recognize and define aboriginal rights as we know them today.

Since the early 1980s, self-government, as one of the aspects of aboriginal rights, has been a pressing issue for aboriginal peoples and for Canadians at large. The effort of aboriginal people to assert their inherent right to self-government has always existed as part of their aboriginal rights. In 1990, in Sioui, the Supreme Court of Canada gave credence to this view, citing with approval a 1983 U.S. decision that referred to Great Britain's policy of regarding Indian nations inhabiting the territory "as nations capable of maintaining the relations of peace and war, of governing themselves under her protection." The Supreme Court of Canada commented in Sioui that the British Crown had a policy of intervening as little as possible in the autonomy exercised by aboriginal people over their internal affairs.

In 1982, a significant constitutional amendment was made, resulting in the inclusion of section 35 in our Constitution. This section recognized and affirmed existing aboriginal treaty rights. I was part of the Government of the Northwest Territories that was present at those constitutional conferences which amended the Constitution and added these provisions.

A question then arose as to whether this section included a right to self-government. The Penner report, a report of the Special Committee on Indian Self-government, received unanimous party support in 1983. It concluded that First Nations governments might already hold implicit legislative powers of self-government protected under section 35. The report stated:

Self-government would mean virtually the entire range of law making, policy, program delivery, law enforcement and adjudicative powers would be available to the Indian First Nation government within its territory. It would include full legislative and policy making powers on matters affecting Indian people and full control over their territory and resources within the boundaries of Indian land.

April 6   

Honourable senators, I was interrupted yesterday partway through my speech, so I will briefly capsulate what I said.

The Nisga'a bill before us is the result of an evolution of the views of the courts and the federal government on aboriginal rights. The 1973 Supreme Court of Canada case of Calder was instrumental in changing government policy. Since then, various parliamentary and government bodies - Penner is one - have studied the subject, each in their own way advancing the notion of aboriginal rights and what they entail in our country.

My comments are in support of the bill being debated, voted on and quickly implemented. I do not support the amendment to cause a six-month delay or hiatus. The Nisga'a have waited a long time. While I appreciate that the amendment is aimed at providing time to resolve the boundary overlap issue, I seriously do not think that the delay will accomplish that. The overlap matter is internal to the Nisga'a and the neighbouring First Nations, and I trust that through negotiations, through good-spiritedness, and through time this issue will be resolved. The Nisga'a bill is too important for the general good of the Nisga'a and aboriginal people of our country to delay.

Honourable senators, in 1986, following the federal task force report which was titled "Living Treaties, Lasting Agreements," the Conservative government indicated a willingness to discuss legislative proposals to replace the Indian Act with local self-government arrangements with individual First Nations. Federal policy, however, did not permit any major change from the municipal government model. Instead, it focused on enhanced bylaw powers and economic development.

Delegated powers, however, have never been acceptable to aboriginal peoples. Aboriginal people need the same powers as other governments to be self-determining and to have control over their lands and resources. I believe there has been an evolutionary process towards these types of powers that we see in the Nisga'a agreement.

In March 1992, a joint parliamentary report recommended the inherent power of self-government be entrenched but in a manner consistent with a view that section 35 of the Constitution might already recognize that right. In July 1992, a political accord was reached between aboriginal leaders and provincial premiers along those lines. The Charlottetown accord was rejected by Canadians in a national referendum. We do not know precisely which parts of the accord the voters rejected. Nevertheless, it shows the government thinking and the support for aboriginal self-government which has grown over the years.

The federal Liberal government has taken a very different and progressive turn in its policies on issues of aboriginal self-government than its predecessors. The Liberal Red Book pledged to act on the basis that section 35 both recognizes and affirms an inherent right to self-government. It pledged to make such changes as could be made under existing laws, proceeding on the basis that the inherent right is an existing right protected by section 35.

That view is supported by the evolving jurisprudence on section 35 rights. In 1996, in Van der Peet, the Supreme Court of Canada stated that the purpose underlying section 35(1) was:

...the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America, aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions.

In Regina v. Pamajewon, the court held that, "Claims to self-government made under s. 35(1) are no different from other claims to the enjoyment of aboriginal rights." In the landmark case of Delgamuukw , the court urged the resolution of these difficult and complex issues through negotiated settlements, with good faith, and give and take, on all sides, as a means of achieving a basic purpose of section 35(1) - "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown."

We are here today, honourable senators, because changes in the federal government's comprehensive claims policy recognize an inherent right of self-government, together with the evolution of Canadian jurisprudence in the understanding of aboriginal rights. The Nisga'a treaty is a culmination of this process. It represents a full-blown agreement in lands and resources characterized by self-government or, as Pierre Trudeau said, "...the transformation of ill-defined aboriginal rights into clearly stated, justifiable written rights."

In the Northwest Territories, there has been a number of land claim agreements - the Inuvialuit in 1984, the Gwich'in in 1992, the Sahtu in 1994, and the Inuit in the Eastern Arctic through the creation of Nunavut in 1999. These land claims agreements have been positive and have resulted in aboriginal peoples gaining ownership of lands, resources and having control over resource development, environment and wildlife through various management boards. The agreements are in various stages of implementation and development.

I wish to speak briefly about the Inuvialuit who occupy the Delta, the western part of the Northwest Territories. Since their claim in 1984, they have successfully managed their lands and resources. They have used their monies in appropriate investments and business opportunities. Today, the Inuvialuit are a driving force in the Delta region and western NWT. They have spread their investment tentacles throughout Western Canada. They have invested in all kinds of projects and businesses. They own office buildings. They have an oil and gas exploration company, regional airlines, barging and trucking companies and a multitude of businesses which provide employment for their people and others. In June 1999, the Inuvialuit completed a 30-mile natural gas pipeline from a gas field on their lands to Inuvik which now provides fuel for heating and power production.

I noticed in a recent magazine article that the Inuvialuit are offering some lands for oil and gas exploration through a bid process. In 1999, they signed $180 million worth of contracts for exploration work on their lands. The 1998 annual report of the Inuvialuit Regional Corporation, the latest report available, outlines the success of all the various corporations as being $8 million in profit.

Except for the Inuit people in the Eastern Arctic, self-government was not a part of the land claims to which I referred, but we have been fortunate in the Northwest Territories because we have a legislative assembly in which all peoples of the North, particularly the aboriginal people, participate. Today, Premier Stephen Kakfwi, a Dene from the Sahtu, and aboriginal people form the majority of elected MLAs.

From experience, I know what self-government is. I was an MLA for 16 years and a member of the cabinet for six years during which I was government leader for two of those years.

The process of aboriginal people achieving self-government is no different from the process of achieving responsible government in the Northwest Territories. The history of the government in the Northwest Territories since 1970 has been to struggle for responsible government. This struggle is no different than the struggle that went on in the western part of our country when Alberta, Saskatchewan and Manitoba struggled for responsible government. The process is one of wresting control from the federal government. Nothing is simply given to people. They must fight and win responsible government. That is the way that I see things happening for the aboriginal peoples in our country.

When I came upon the political scene in 1970, the executive of the Northwest Territories government consisted solely of non-elected federal appointees. The executive was made up of the commissioner, the deputy commissioner and the assistant commissioner. The territorial council of which I became a part consisted of nine elected and five federally appointed people. Through the years, the legislative assembly became fully elected and the executive cabinet became fully elected. I had the honour of taking from the commissioner the last portfolio he held in 1986.

In the Northwest Territories, we have gone through a process where responsible government was achieved by the people. We fought for it and strived towards it, and eventually the Northwest Territories became a fully responsible government.

I wish to turn now to the Nisga'a. The Nisga'a, through their Nisga'a government provisions, will have self-government. They will have responsible government over facets of their lives that will obviously be important to them. They will have the power to define their citizenship and have control over education, health and social services, the police and the judicial system. These are all matters of local concern. I applaud them and trust that they will use their powers wisely to create economic opportunities and a dynamic society for their people. Speaking from my experience in the Northwest Territories, it seems that when opportunity is given to people, they rise to the occasion and act responsibly. I have no doubt that this will happen with the Nisga'a people.

The way that land claims and self-government can be a positive force in the lives of aboriginal peoples in the North is illustrated by the example of the natural gas pipeline in the North. I spoke of this topic early in February when I spoke for the first time in the Senate. I told honourable senators that there is a new attitude, a new strength, and a new feeling of optimism among the aboriginal peoples in the North since land claims and responsible government has come to the North. Twenty years ago, many of the native people in the North were against developments such as gas pipelines. That was because the people of the North felt they did not have control of the lands or the resources to handle such a massive project. Now, 20 years later, they are much better prepared to handle such development. It is positive to see people of the North now supportive of a major project such as this major pipeline from the Arctic. This is something that is occurring in part because of land claims and self-government in the North.

I say this to illustrate that, when land claims are made and self-government agreements are reached, the people really come alive and their ideas come to fruition. I cannot help but think of the people in the Eastern Arctic who have responsible self-government. They have problems because it is a difficult area of the country to govern. They do not have trees or resources. Yet, they have a sense of optimism and spirit. Their culture is coming alive, and their language is strong. The people feel good about what has happened there.

I do not agree with some of the witnesses who appeared before the committee, who said that the bill is unconstitutional because it would create a third level of government. I believe in the notion of the inherent right to self-government. I believe that right is contained in section 35 of the Constitution. The Nisga'a bill gives expression and detail to precisely what those rights are.

I believe the aboriginal peoples of Canada can best achieve their goals and create a strong independent society by having full and responsible self-government. As for delegated powers, what we have now in the Indian Act is not working. The status quo is not working. It is simply not good enough. Full responsible government is what is called for.

Honourable senators, when all is said and done, after we have debated this measure for the time that we will debate it and when all the constitutional discussions and technical arguments have been made and are over, the important consideration that we must make is whether this bill will improve not only the lives of many of the Nisga'a people, but the lives of the aboriginal people of our country. I have heard many people say that Canadians have a bad history in terms of their dealings with aboriginal people. This Nisga'a bill is a turn for the positive. This bill is something that has been negotiated by the Nisga'a with the provincial and federal governments. Therefore, it will surely work, because it is the result of many years of discussion and negotiation.

From my knowledge and from my experience, I believe the Nisga'a will be better off. I only need to look at what has happened with aboriginal people in the North, in the Eastern Arctic, to see that. I have some knowledge of the Navajo in the United States. They have their own self-government and have control over many aspects of their society. I looked at their justice system when I was working in that area. I see that, through the years, they have brought back their own laws and their own system of justice. Their society is growing and beginning to flourish.

Honourable senators, I was present in the House of Commons when the vote on Bill C-9 was taken. I was proud to see our government and representatives of most of the parties support the bill. That was a proud moment for Canada. It will be a proud moment for Canada when members of the Senate also stand in support of this bill. I stand proudly today in support of it. I trust that all honourable senators will support it.