Lands Committee Meeting

5:00 – 7:00 PM PST, July 10, 2024

Agenda:

• Welcome remarks
• Roundtable introductions
• Background and experience with Land Code – Meko Nicholas
• Question and answer period with Meko Nicholas
• Re-introduction – Terms of Reference (not covered)
• Information binders for committee (not covered)

Meeting Notes

Background and experience with Land Code – Meko Nicholas

• Background in Canadian politics: Meko was assigned to work with the chiefs of the lands advisory board, advocating within the federal government.
• Experience: Meko spent a couple of years working with the chiefs, noting positive outcomes despite some downsides. During Meko’s experience, he did not encounter a single FN who expressed regret or a desire to revert to the Indian Act.
• Community expressions: Even if a FN votes no on LC, it is an important expression of community will.
• Initial stance of chiefs of the lands advisory board: The chiefs said that they don’t want FNs to be forced into LC or impose it on communities.

Question and answer period with Meko Nicholas

Q: What kind of consent is required for lands administration for FNs going into LC as a numbered Treaty?

A: Signatories include both numbered and non-numbered. No nation has had any impact from this. The Framework Agreement states it doesn’t impact treaties, although a future judge might interpret it differently

• Treaty 8: Many feel that by signing Treaty 8, sacred laws were intentionally excluded to prevent them from being engulfed by the Crown.
• SFN Powers: The Treaty granted SFN powers that were already held, such as fishing and trapping.
• Way of Life: The Treaty’s mention of “way of life” includes ceremonial practices and governance, opening new interpretative possibilities.
• Nation-to-Nation: It’s crucial to maintain this relationship and explicitly include these terms in the LC.

Q: Are there barriers for SFN in making the LC explicit for on-reserve lands?

A: LC is an administrative tool for reserve lands. It replaces 44 sections of the Indian Act with the Framework Agreement, which acts as an umbrella rather than the Indian Act.

• Stewart Cameron suggested referring to the SFN LC as the East Moberly Lake IR LC, to reflect that it is applicable to reserve lands.

Q: What are some of the experiences of other FNs with the Framework Agreement?

A: Meko expressed that not a single FN has receded their LC. Some FNs have moved on to self-government agreements, using the Framework Agreement as a stepping stone. For example, Cowichan assumed authority over child welfare.

• Concerns: There are FNs that have been stuck with governments trying to sort out applicable laws.
• Supreme Court Ruling: The Supreme Court stated there must be a mix of laws, but no agreement exists on how to mix them.
• Framework Agreement: There are FNs using the Framework to assume authority without waiting for government approval.
• Recognition: The Framework acknowledges that no minister or government dictates what needs to be done.

Q: What are the semantics behind naming the LC East Moberly Lake No. 169?

A: Semantics are not important for the title, whatever brings the most comfort for SFN community members. Reserve lands remain IR in surveys and have survived the process. Some communities have translated the LC into their language, and the Framework allows for language use to interpret ambiguity.

• Sensitivity to Treaty Impacts: People are sensitive to the impacts on treaties and so SFN needs to think creatively about protection.
• View on Treaties: Many view treaties as extinguishment, but FNs ways emphasize belonging to and being part of everything.
• Treaty Interpretation: Treaty is often seen as giving up land for rights and a small payment, but FNs believe the land is owned by the creator, not them.
• Protection Based on Peace: Treaty is based on a power-balance relationship and peace, which needs protection.
• Wording: Words in the LC need to reflect SFNs perspectives rather than a self-government approach.
• Collective Interpretation: SFN needs to discuss and create a collective interpretation of the Treaty.
• Importance of Semantics: Semantics matter because definitions are crucial.

Q: How should concerns be addressed to achieve consensus?

A: Jasmine said that addressing people’s concerns is crucial for consensus. If people aren’t comfortable, the job isn’t done. It’s important to take back jurisdiction bit by bit and ensure everyone agrees on the title. It is okay to not be okay. There are people who may never trust LC, and it is completely legitimate.

Q: The Framework Agreement is contradictory and based on extinguishment policy, and it is confusing to interpret. Will SFN lawyers speak to this?

A: Meko explained that the government can infringe on rights and say that rights/reserves don’t exist anymore. However, the Framework is not based on extinguishment but references the Crown, reflecting current law. No FN believes the underlying land belongs to the Crown, although Crown title still exists. Originally, they chose to seek relief from the Indian Act first and then address this battle. There are major differences: no extinguishment, reflection of existing reserves, and the underlying title of the Crown remains unchanged. Canada still owes a fiduciary relationship, and even the Supreme Court’s expression of underlying title does not supersede Aboriginal Rights.

• Challenges of a Braided LC: Jasmine added that due to the uniqueness of LC, it is difficult to understand how this could be interpreted.
• Encouragement: Jasmine suggested SFN to reach out to other FNs to learn more and find comparable examples of LC.
• Flexibility: LC is not set in stone; it can be changed if something doesn’t work. It evolves over time but cannot revert to the Indian Act.
• Support: Meko added that they can help SFN reach out to other FNs to get answers on the pros and cons.
• Respect for Other Nations: Meko does not want to speak for other nations but can facilitate connections if SFN is interested.

Q: Crown is assumed title. Some SFN members may believe that by signing into LC, they are giving consent to ultimate Crown Authority. What are your perspectives and experiences?

A: Meko responded that while a future judge’s interpretation is unknown, there has been no issue so far, and several communities are re-interpreting the framework without any impact.

Q: Does the framework affect taxation?

A: The framework has nothing to do with taxation; it is a completely separate issue.

Q: What happens if SFN puts our own definitions in the LC? Josh is concerned that the government has hijacked definitions and that the LC won’t supersede these.

A: Meko explained that the framework and LC express governance powers and how they will be implemented. They can make by-laws, but these are subject to government oversight. The LC means it’s up to them.

• Funding and Programs: Funding and programs under the Indian Act also apply under reserves, including child welfare. This process is about taking back power and recognizing these powers. Meko agreed, stating this is an administrative change, not an expression of the Treaty, which is a separate conversation.
• Networking and Learning: SFN Lands representatives met with other nations, such as at a networking conference in Vancouver with at least 100 nations. The LC is a living document, allowing for evolution without regrets.
• Acknowledgment and Hard Work: LABRC sees the benefits of LC for SFN, and defining the nation-to-nation relationship. The SFN LC allows for quicker decision-making without waiting for ministerial approval.
• Legislation and Negotiation: In response to Josh, Jasmine noted that this issue is out of FN hands at this level, but organizations like LABRC and evolving legislation are at the forefront. Nations can approach LABRC to negotiate with the government. Canada must acknowledge and listen to FN voices. The LC is one piece of taking back power, with more pieces to follow.

Q: How about recognizing SFN title and authority in the Framework Agreement?

A: Jackie responded that this can be included in the preamble, emphasizing governance, language, culture, and uniqueness. Josh wants to ensure the Treaty supersedes anything else, and Jackie agrees, stating they do not agree with extinguishment.

• Indian Act Applicability: The Indian Act applies whether they like it or not.

Q: Why are sections 35 and 25 important?

A: Patti explained that section 35 deals with expropriation, and section 25 with transfer. Section 35 allowed municipal and government entities to take land under the Indian Act.

Q: Why do we need Canada to recognize owners, given that SFN has the ability to create laws? Is there going to be a cost to implement LC?

A: Meko responded that operational funding comes after ratification and is negotiated with the support of LABRC. There are three categories of funding, and while it may be enough for some communities, it might not be for others. This needs to be discussed based on the document to be sent.

• Contaminated Sites on Reserve: Carmen highlighted the high cost and complexity of remediating contaminated sites on reserves. She noted that if SFN enters the LC without sufficient capacity, the high costs could be prohibitive. She emphasizes the need for thorough homework and expresses interest in why they can’t have their own by-laws if the committee is questioning the need for a LC.
  • Framework and Contaminated Lands: Meko explained that the Framework explicitly states that FNs are not responsible for issues that Canada should have fixed. Contaminated lands remain a government liability, and this responsibility does not transfer to FN. Canada remains responsible for providing legacy funding, though it may not fix issues when the LC is implemented. LABRC provides $1.5 million to address outstanding issues, which does not cancel SFN’s ability to get future funding.

Q: Do we need Canada to recognize SFN’s authority?

A: Meko stated that FN authority does not come from Canada. The Framework is a mechanism to exit the Indian Act, and SFN does not need Canada or the Framework for its authority.

• Community Constitution: Mary added that, unfortunately, the community did not sign off on the constitution. Meko clarifies that the authority still exists, and the Framework is a legal mechanism to reclaim lands.

Q: Does the Indian Act grant authority to FN to pass by-laws?

A: Meko explained that the Indian Act grants FN the authority to pass by-laws, but there is a disallowance authority where the minister can revoke them. The Framework recognizes FN’s ability to pass laws, not by-laws. If FN wants to create by-laws, they can do so.

Q: Does someone from the government have to approve the laws?

A: No, according to Meko.

• RCMP Enforcement: Mary added that the RCMP cannot enforce anything on reserves even at request. However, with the LC, there is an agreement with the RCMP to enforce laws (e.g., pets, driving). The benefit of the LC is that the RCMP can enforce federal law on reserve.
  • Enforcement Crisis: The Framework has not solved the enforcement crisis. While the RCMP can enforce certain laws, they do not enforce nation laws. The Framework usually involves laws with fines (e.g., dumping, trespassing), but the RCMP often questions these. Some provinces (e.g., Manitoba, Nova Scotia) have made progress. LABRC wrote to BC to start advisory to enforce LC laws, addressing discrimination in law enforcement. This issue is not unique to LC nations and remains unresolved

Q: Is there potential for an FN police force?

A: Meko noted that in Ontario, there is an Aboriginal Police force, an offshoot of the RCMP, but it faces similar issues due to RCMP understaffing.

Q: Nicole raises concerns about liability and legal costs. What happens when a FN takes responsibility for land?

A: Meko explained that while Canada retains liability, FNs are responsible for decisions made under their laws. For example, if a FN approves oil drilling and contamination occurs, the company is responsible for cleanup, but FN may face legal challenges.

Q: How can SFN regard language and naming in the LC?

A: Gil emphasized the importance of clear distinctions in naming to avoid ambiguity. He stressed that the way the LC is written should be clear to all audiences, ensuring everyone understands the boundaries. He also highlights the need for due diligence to anticipate and address potential challenges. Gil asked for insights on what people would do differently now compared to when they first implemented the LC, to learn about challenges and barriers, and to understand the pros and cons.

• Conference Recordings: It would be beneficial to get minutes or recordings from the conference Jenine mentioned.

Q: What happens when FNs sign on to the Framework and there are amendments?

A: Meko explained that signatories in Canada are eligible for funding to develop the LC. The decision is made by voting to approve the LC. If the community ratifies it, that is SFN ratification, it will have no effect on other FNs.

Q: Can Treaty Rights be narrowly defined, especially if a future government changes policies?

A: Meko responded that Treaty Rights can only be narrowly defined by agreement, and there is no stopping future governments from making unfavourable changes.

Q: Is there a clear answer on consent, as FNs under Treaty?

A: Meko clarified that no nation believes they have consented under the Framework, but it could be viewed that way. This perspective varies among FNs.

• Language Perceptions: There are always opposing perceptions of what language means, making it challenging to find common solutions and understanding.
• Example from Tsilhqot’in: Mike referenced a similar conversation with Tsilhqot’in (or Chilcotin), who had a Supreme Court interaction and still implemented a land code.
• Treaty Impact and Language: Stewart emphasized the importance of explicitly stating that the LC does not impact the Treaty. He stressed the need to remember and protect sacred laws and ceremonies erased by colonizers. Stewart believes in the Treaty and advocates for using the LC to achieve ultimate sovereignty. He encouraged dialogue on nation-to-nation relationships and understanding the treaty to bring a united front. Stewart will share information from the Yellowhead Institute and other sources.
• Workshops: Jasmine emphasized the importance of conducting a Treaty workshop and an Indian Act workshop to provide a good foundation for understanding what LC means.

Q: Can LC be understood as a municipality, which would domesticate Treaty Rights?

A: Nicole mentioned that [name of FN needed] is moving into a modern treaty and has been working for years to integrate traditional laws into governance. Meko responded that municipalities are creatures of the province and cannot pass laws, unlike the Indian Act, which is more like a municipality. The province gains no authority over FN with a LC.

• Experience with Doig: Jasmine shared that she helped Doig for three years and sees similarities with by-laws. The LC is higher than the province, giving FN more power. It is a way to bring back traditional practices and consequences for actions.
• Treaty Rights: Jackie emphasized that LC will not affect Treaty Rights. Treaty Rights are there for a good reason, and Doig’s Treaty Rights were not affected. This is not an extinguishment policy.

Q: Have any FNs signed a Final Agreement?

A: Josh argued that the Treaty is historical/outdated and that under the Treaty, expansion was possible, but not under the LC. He feels this disrespects the Treaty, as Canada is not respecting the actual Treaty Rights defined by the government. He asks if any FN have signed a final agreement. Miko responded that their reference to the Treaty may differ, as they are a non-government entity, and that the Framework allows for land transfers and additions to reserves, with examples like Westbank’s voluntary land swap for a bridge.

• Legislative Authorities: Gil questioned why the LC ranks low in the law structure and suggested elevating its status. He referenced cultural laws and emergency management, noting the need to preserve laws in their language and align them with existing customs.

Q: When does the Final Agreement come into play?

A: Meko explained that the Final Agreement should already be in play as a boilerplate document. Canada remains responsible for outstanding land issues, and other communities have successfully had issues recognized. The agreement is only in effect if the community votes for it.

• Language Simplicity: Gil emphasized the importance of using simple language for better understanding.