Debates of the Senate  
1st Session, 41st Parliament, Volume 149, Issue 176
  Tuesday, June 18, 2013
Bill C-62: Yale First Nation Treaty (Third Reading)
Hon. Lillian Eva Dyck: Honourable senators, I rise today to speak to Bill C-62, An Act to give effect to the Yale First Nation Final Agreement and to make consequential amendments to other Acts. The Standing Senate Committee on Aboriginal Peoples dealt with this bill last week, and our first panel of witnesses were from Aboriginal Affairs and Northern Development Canada: Mr. Greg Rickford, Parliamentary Secretary, and Mr. Jim Barkwell.

One thing that became very clear from their testimony was that this agreement has been in the works for 19 years. In fact, the BC Treaty Commission process has only been in effect for just a little over 20 years, so they engaged in the process very early on.

When asked what the main barriers were, they made it clear that it was difficulties in mediating the interests of the different First Nations within B.C. who felt they had overlapping interests within the Yale treaty.

As honourable senators may have noticed from the title, the Yale treaty is an act to give effect to the final agreement. The Yale First Nation Final Agreement was ratified by the Yale First Nation itself in March 2011 and by the British Columbia Legislative Assembly on June 2, 2011. It appeared here in the other place just a few months ago.

The Yale First Nation is located in British Columbia and consists of 16 reserves located along the Fraser Canyon just north of Hope, British Columbia. It is a small community with a registered membership of 159 people, 67 of whom live on-reserve with the remainder off-reserve.

The Yale First Nation — and Chief Hope appeared later — describes itself as an independent First Nation — independent from the Stó:lo Nation and also from the Nlaka'pamux Nation, but they considered themselves not part of the Stó:lo Nation.

The final agreement will provide the Yale First Nation with fee simple ownership of about 2,000 hectares of land, 90 per cent of which comes from provincial Crown land. I found it interesting that the land will be fee simple as opposed to ownership by the whole band, which is the norm within the Prairie numbered treaties. However, apparently within the B.C. treaty process, it is part of the process that any land transferred then becomes fee simple land instead of community-owned land.

In addition, the agreement provides $10.7 million of capital transfer, less outstanding negotiation loans, and $2.2 million in economic development funding. Of this capital transfer, apparently a very large percentage will go towards the negotiation of the treaty. I guess that is quite common. One of the criticisms of the B.C. treaty process is the fact that, when the capital payment comes to the First Nation that is negotiating a treaty, 50 per cent or more of a capital transfer is eaten up by the fees that they have to pay to lawyers, court challenges and so on to get their final agreement.

In addition to these monies, they will get $700,000 in ongoing annual funding to provide for programs and services, such as education, health care and public works, and $600,000 in ongoing funding to support governance activities.

The agreement will really create for the Yale First Nation a treaty that gives them self-governing abilities. In addition to having their own laws, such as in education and child protection, they will also have to interact with provincial and federal laws in areas such as health, peace and safety, and traffic.

It is a major advance for the Yale First Nation. They will have the ability to be self-governing and to develop economically, and they will have fee simple, which some argue is an advantage and others say is a disadvantage. Therefore, there are many good things to say about the final agreement.

However, they say they are not part of the Stó:lo Nation, but the Stó:lo Nation says they are. The sticky point is that there are overlapping claims. Again, as part of the B.C. treaty process, this is actually a common occurrence.

In the second third of our meeting, we heard from Chief Norman Hope, the Chief of the Yale First Nation. He made it very clear when he said, "We are not Stó:lo." He wanted to make that absolutely clear. However, when we heard in the third part of our meeting from Chief Joe Hall, the Grand Chief of the Stó:lo Nation, his position was that the Yale First Nation is part of the Stó:lo Nation.

He was very much concerned about overlapping claims, particularly the Five Mile Fishery, which would be a prime site for salmon fishing and would help support not only the feeding of the families, but would perhaps also allow for economic development.

Chief Joe Hall said that the Yale First Nation Final Agreement was a serious violation of Stó:lo rights, and so he was opposed to it because he wanted a shared territory agreement.

Apparently the Yale First Nation and the Stó:lo First Nation have not been able to resolve their dispute and this has been ongoing for many years. It is putting parliamentarians in kind of a bad situation, where it looks like we are supposed to adjudicate on which First Nation should get the territory that is covered in the Yale First Nation. This is not a comfortable position to be in. In fact, at first sight, looking at it, it is almost like a no-win situation for us. If we support Bill C-62, it is a win for the Yale First Nation but it could be seen as a loss for the Stó:lo Nation. However, if we do not support Bill C-62, it could be seen as a win for the Stó:lo and a big loss for the Yale. It is not the kind of position one wants to be in.

However, having said that, we must realize — and it was actually mentioned in the report that our own committee did about a year ago — this dispute should have been resolved before the final agreement came to Parliament Hill. This should have been resolved before we got to actually see the witnesses and take a position on the bill.

How should this have been done? There is one possibility. There could have been a binding agreement between the Stó:lo First Nation and the Yale First Nation. Unfortunately, this has proved not to be a viable option for the Stó:lo. They have said that the position taken by Yale First Nation — the bottom line — is not acceptable to them, so they were not willing to go that route.

However, there are other options. It seemed unusual to me in that the final Yale agreement does not actually come into effect until April 1, 2015. The Yale First Nation Final Agreement can be amended to accommodate the rights of other Aboriginal peoples, such as the Stó:lo. Section 2.12 of the final agreement stipulates that the provisions of the final agreement can be altered, replaced or renegotiated where a court finds that the final agreement adversely affects the rights of other Aboriginal people or where treaty negotiations have commenced with other Aboriginal people that adversely affect Yale First Nation rights, as outlined in the final agreement.

In other words, if the Stó:lo First Nation were to go to court saying that this agreement should not go forward because they have a claim to shared territory, and if the court decision is in their favour, then the Yale final agreement could actually be amended. That would take their concerns, ratified by a court, into consideration. Then the Yale First Nation Final Agreement would be amended accordingly. That is an available option.

The bottom line of all of this information is that Bill C-62 will create the Yale First Nation treaty as of April 1, 2015, a little less than two years from now. While contentious, outstanding claims remain unresolved — most particularly right now, we are aware of the Stó:lo Nation — and while this is an odd situation, it is not totally hopeless. The Stó:lo Nation has options to have their concerns and rights addressed, even though this bill is passed.

Interestingly, when I looked at this more closely, I realized that this situation is not unique. It is actually an integral part of the B.C. treaty process. As I mentioned before, in June 2012 our committee released a report on the B.C. Treaty Commission process, and we noted that there should be better processes to resolve overlapping land claims when it comes to claims with respect to lands and resources. That is exactly what has happened in the Yale First Nation Final Agreement. That is exactly what is happening with this bill.

Honourable senators, we also noted that the costs of entering into treaty-making in B.C. are enormously high and that a large part of their capital transfer may be eaten away just by simply trying to get an agreement going. That is what will happen to the Yale First Nation.

I did recall — and this is the beauty of being in the Senate for eight years — that our committee saw, within the last five years, two other self-governing acts come to our committee, and that was for the Tsawwassen First Nation, which was implemented in 2009; and the Maa-nulth First Nation. That was preceded years ago by the Nisga'a First Nation. For both the Tsawwassen and the Maa-nulth, when they appeared before the committee we did not hear any dissenting views from competing First Nations, so I thought it was interesting that we did with Yale. I went back and looked at the information that I still had in my office with regard to the Tsawwassen and the Maa-nulth. In the information with respect to the Tsawwassen, which I think is near or maybe part of Vancouver, it talks about court challenges. That act was passed. We did not hear any dissenting views. Nonetheless, there were court challenges filed by a number of First Nations. Semiahmoo First Nation filed a petition for judicial review, and they were asking for consultation with them. The Sencot'en Alliance filed a similar petition. The Cowichan tribes filed a similar petition in 2007. Apparently, the Cowichan and Tsawwassen agreed on a process for resolving their overlapping claims by the time the agreement would actually come into effect.

It is not unique to the Yale First Nation, and that made me feel better about the whole process.

Similarly, when I looked at the information we had when the Maa-nulth First Nations Final Agreement came before us, again there is another section on court challenges. In fact, court challenges were brought forward. One was dismissed, saying there was not sufficient evidence to justify it. Apparently, there were other statements of claim. I am not sure of the final outcome of those because at that point in time we had passed the agreement.

Honourable senators, the bottom line is that what is happening in the Yale First Nation is part of this process going on in B.C. It has taken 150 years to finally get around to creating the treaty. Meanwhile, we have small First Nations who have moved around a bit, depending on what is happening to the terrain, whether there are floods and so on. The Yale are situated here, the other Stó:lo are somewhere else and now they are fighting over the territory. Someone has to resolve it. The B.C. treaty process is not resolving it. It needs to be improved. I do not think we, as parliamentarians, can do that for them. It is not the best way to proceed, but it is the way the process was set out.

In conclusion, we can see that the B.C. treaty process is flawed. As we stated in our June 2012 report, a formal dispute resolution as part of the B.C. treaty process should be resourced and in place before the final agreement is signed. Here, we are getting agreements when there are still outstanding claims.

We have competing First Nations. With respect to Bill C-62 before us today, if we vote "no," no one benefits and we go right back to the table. Apparently we might even delay implementation of the bill. If we vote "yes," Yale definitely will benefit and the Stó:lo will not lose, as I first thought. The Stó:lo may still benefit because they still have the two options. They can still enter a binding agreement if they are able to reach an agreement with the Yale First Nation, and they can still take their challenges to a court and, if the court upholds their position, then the final agreement can still be amended.

After having said all that and looked at the past history, I have decided that the bill is worth supporting.