Thank you, Mr. Chair.

Good morning, everyone.

Since Grand Chief Kelly and Grand Chief Hall have given their credentials, maybe I should, too.

I may look like your quintessential white lawyer, but I am actually a Riel. I am from Red River in Manitoba. I have been a negotiator on treaties for 20-some-odd years. I started out at the end of the Yukon agreements, I worked on the Tlicho Agreement, and I work now as the chief negotiator for the Stó:lo Xwexwilmexw Treaty. So I have a long history in treaty with all kinds of governments—Conservative and Liberal governments. I have many, many years of working with them.

My impression is that it isn't about partisan politics. Everybody is trying to get treaties resolved. I want to start with that tone, that I think everybody in this room wants to have treaties and wants to have them resolved. The problem is how we do that and if this particular treaty should go through.

What I want to say here is that you've heard from the grand chiefs very eloquently about the problem here. It's what usually is described as an overlap problem or a shared territory dispute. That's really what's going on here. I think in this situation, overlap is usually two different peoples. Shared territory is really what we're talking about here. This is the Stó:lo territory, one small group, being proposed by the treaty to give them what belongs to the larger group.

Grand Chief Joe Hall was struggling for an analogy. The way I think about it is that you and your husband or you and your wife own a house and you hold it in joint title. Then you divorce. Instead of it being split or being kept in joint title, the house is given to one person. The way the proposal is in this treaty, to fix it, is to give the other party access rights. So we say, “Okay, Mr. Rathgeber, I'm going to take your house away from you. I won't pay you for it, by the way. It's not expropriation; I'm just going to take it away from you. I will fix it by putting an access clause in this agreement. You can come and visit it when I tell you that you can come and visit it, if I feel like letting you come and visit sometimes. But after a while, I may decide that you can never come and see this again.” That is what is being proposed here. The land is being taken away and given to one, and they will own it in fee simple. They get to decide then whether the rest of Stó:lo can ever come. That's the proposal on the table in this bill.

What I want to say to you is that Canada has played a very important role in solving these overlap problems in the past. Let me give you some examples. Tlicho is up in the Northwest Territories, just north of Great Slave Lake. It borders on Nunavut, it borders on Sahtu territory, and at the bottom it borders on a people call the Akaitcho people. The Tlicho got overlap agreements with everybody else, and it was not a problem. Akaitcho are historic enemies, right? I mean historic enemies. I've walked into rooms where one of the Tlicho chiefs would say, “Akaitcho, that murderer!” I remember saying to somebody, “Is that today?” It turns out it was 150 years ago. That's how vehement the dispute was.

It was a hard thing, but Canada played a really important role in solving that. What you did I think was actually right. We negotiated the whole treaty, it was all done, except that overlap. Canada took a very principled position and you said to us, “Okay, we won't sign this treaty until you solve the overlap problem.” That put real pressure on us, representing the Tlicho, to go and solve the problem. We wouldn't get a treaty until this was solved, and we solved it because they wanted a treaty.

Everybody has to have skin on the table if you're going to negotiate an agreement. That's one way you solve it. I think that is a very good way.

Well, you had the opportunity to do that here many times, and you didn't do it. You sat back and waited in the weeds. Canada had muscle to use to solve this problem, and you didn't do it. So you've signed the agreement—we're too late for that—but you can still exercise your muscle.

You've done it in other ways in other agreements. That's just one example. In 1975, with the James Bay and Northern Quebec Agreement, there were islands in James Bay that were hotly in dispute, so you carved those islands out. You pulled them out of the agreement and you said, okay, we'll give you the agreement, the rest of the agreement; sign that agreement, but we're going to take this disputed area out of that agreement for now and we'll give you the whole agreement, and then we'll come back when you have solved that overlap problem and we'll figure out how to put it back in your treaty.

You did it. It was another way of solving the problem and it worked. You did solve the problem.

You had overlap problems in the Nunavik agreement that was signed in 2006. In James Bay you solved this problem as long ago as 1975. Canada resolved these overlap issues. In 1993, with the Nunavut agreement, you also had overlap problems and you solved them. In the Nunavik agreement in 2006, you solved them, and the Tlicho agreement in 2005.

I've just given you five examples of where you have solved these overlap problems. Why didn't you do it here? Why didn't you do it here?

We're here today because as far as I can see, Canada vacated the scene. But you don't have to sit there; you can still fix this. We suggest that there are some amendments, very small amendments, you could make to this agreement, which I would suggest would go into a subclause 7(1) of the bill. I'll read it to you. You probably have the bill in front of you.

There is no subclause 7(1) right now. I'm proposing you add a subclause 7(1).

Clause 7 says:

On the effective date of the Agreement, the Yale First Nation owns the estate in fee simple, as set out in Chapter 12 of the Agreement, in Yale First Nation land.

I'm saying that should be amended to say:

Subject to 7(1), on the effective date...Yale First Nation owns the estate in fee simple

I'm saying that you add a subclause 7(1), which would essentially be a carve-out of the five-mile fishery. I'm suggesting the language be:

7(1) Any or all of the lands described in Appendix B2 - Part 2, Maps 1, 2 and 3 or Appendix C, Map 2 of the Agreement shall form part of the estate in fee simple in Yale First Nation Land or be subject to Yale First Nation laws only after the Agreement is amended to give effect to a shared territory agreement with Stó:lo.

What I'm suggesting to you is that Yale can have their treaty. You've heard both grand chiefs say we're not against Yale's treaty. What I am suggesting to you is a win-win here. Yale can have their treaty and you can exercise your muscle to insist on a resolution of this five-mile fishery dispute by just carving that part out of the treaty. It is a minute part of the land they're getting. It is not the major part; it's really just one tiny little area up in the canyon. The bulk of their land—something like 97% of their land—would still transfer to them. All of their jurisdictions with respect to everything else would transfer to them. They would get their treaty, and then when this is resolved, however it's resolved.... It may be resolved by an overlap agreement that's amending the treaty and added in, as in the Nunavut agreement, or the James Bay and Northern Quebec Agreement, or the Nunavik agreement—those are all possibilities. It's a very simple way of doing this.

What I said earlier about having skin on the table.... I've been a negotiator for a long time, and I think a lot of people in this room have probably sat around some negotiation tables, too. Everybody does have to have some skin on the table or you don't get a deal. If somebody walks in and they have nothing to gain from sitting down at a negotiation table and everything to lose, then you have no possibility of resolving that. That's the situation we were in, in these processes, the consultation process and the mediation process. Yale came to the table with the deal signed and sealed in their back pocket, and with nobody telling them they had to negotiate. Chief Hope said to us—and we were in the room, all of us—“Over my dead body will one word of my treaty change and over my dead body will Stó:lo be mentioned in my treaty.”

I'm sure you're going to say, “Well we've gone through all the processes. We tried everything we could.” If that's the position he took—and it is—going into the treaty consultation process and the mediations, then there is no possibility, and there never was.... He didn't have anything to gain to come to this table because nobody put any pressure on him to resolve the issue. So there was no process that was meaningful, ever, for us to solve this problem.

I'm putting forward what we suggest is a solution. We would ask that this be given some very serious consideration, because it is a possibility for giving them what they want—their treaty—and giving you what you want—their treaty—but also giving us an opportunity still to solve this problem with respect to that small area.

I want you to know that we had a lot of disputes and issues about a whole bunch of other things in the treaty. We've given those up and said that we'll pass on those. But it is the most important area for Stó:lo. You couldn't pick an area that will cause you more problems in the future than that particular area.

We're asking you to seriously consider this amendment.

I've also suggested that it would need “Subject to 7(1)” in subclauses 4(1) and in 5(1), so that it would carry all the way through the Yale act that you're proposing—that it go through except for that carved out section.

I want to thank you for the opportunity to make some submissions to you.

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