Appearance before the Standing Senate Committee on Indigenous Peoples, April 10, 2024

Witnesses

(6:45 p.m. – 7:45 p.m.):

• Hon. Gary Anandasangaree, Minister of Crown-Indigenous Relations

Current Committee Members (12)

• Brian Francis (Chair – PSG – PEI)
• David M. Arnot (Deputy Chair – ISG – SK)
• Judy A. White (PSG – NL)
• Yonah Martin (C – BC)
• Nancy J. Hartling (ISG – NB)
• Donald Neil Plett (C – MB – Landmark)
• Mary Coyle (ISG – AB)
• Paul J. Prosper (CSG – NS)
• Margo Greenwood (ISG – BC)
• Scott Tannas (CSG – AB)
• Karen Sorenson (ISG – AB)

Planned Agenda

• The Minister will attend in-person.
• The Minister's appearance will be from 6:45 to 7:45 on April 10, 2024. The Minister will appear for the first hour. Minister will provide opening remarks of five minutes, and then answer Committee member questions, turning to officials for support if required.
• The Minister's appearance is scheduled to conclude at 7:45 p.m. or at the call of the Chair.
• Representatives from Haida Nation may be invited to appear as witness following Minister Anandasangaree.
• APPA could move to clause-by-clause consideration of Bill S-16 before the meeting concludes.

Meeting Logistics

• The Minister and departmental officials will be invited to sit at the table by the Chair or Clerk of the Committee. The Committee Chair, Brian Francis (PSG - Prince Edward Island), will open the meeting and provide instructions for the meeting proceedings. The Chair will then invite the Minister to deliver opening remarks of no more than five minutes, followed by a question and comment period.
• Like other Senate committees, there are no time limits for questions and comments at APPA and the rotation of speakers is at the discretion of the Chair.
• The Chair will usually say how long each member will have for questions and responses just before the start of the time for questions. They usually have about five minutes.
• Quorum is required whenever a vote, resolution or other decision is taken by the committee. Quorum is defined as four members, regardless of affiliation. Senators who are not members of the Committee may attend but are not counted as part of quorum.
• Any Senator may attend committee and question witnesses but only committee members may vote. [Rule 12-14, Rules of the Senate].
• While Senate committees are generally less partisan than House of Commons Standing Committees, Senators on this Committee tend to ask detailed questions.
• The meeting concludes at the call of the Chair.

Context

• Introduction and first reading of Bill S-16 occurred on February 8, 2024.
• The sponsor of the Bill is Senator Margo Greenwood (ISG, British Colombia), who received a technical briefing by department officials on February 12, 2024. The critic, Senator Yonah Martin (C, British Columbia) received a technical briefing on February 27, 2024.
• Senators Brent Cotter (ISG, Saskatchewan) and René Cormier (ISG, New Brunswick), in addition to Senator Margo Greenwood, received a technical briefing by department officials on February 15, 2024.
• Senators of all affiliations are expected to generally support the proposed initiative as it advances reconciliation and supports First Nation's self-determination.
• Other legislation to recognize Indigenous self-government were supported by parliamentarians. For example, Bill C-51, Self-Government Treaty Recognizing the Whitecap Dakota Nation/Wapaha Ska Dakota Oyate Act, received widespread support and received royal assent on June 22, 2023.
• The Haida Nation is located on the Haida Gwaii archipelago off the north coast of British Columbia.
• On August 13, 2021, the Haida Nation, British Columbia, and Canada (the Parties) signed the non-binding GayG̱ahlda "Changing Tide" Framework for Reconciliation (GayG̱ahlda "Changing Tide"), providing a foundation for a renewed process of negotiations for incremental reconciliation agreements.
• On July 18, 2023, Canada signed the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (the Recognition Agreement), the first incremental reconciliation agreement reached under GayG̱ahlda "Changing Tide."
  • The Recognition Agreement has not yet been tabled in the House of Commons or the Senate.

Long Title

Provides for the long title of the Act, "An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation".

Preamble

The preamble sets out the context for the Act, highlighting:

• The Haida Nation, British Columbia and Canada entered into the GayG̱ahlda "Changing Tide" Framework for Reconciliation in 2021 to advance their objective of achieving reconciliation through negotiations;
• The Parties entered into the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (the Recognition Agreement) on July 18, 2023; and
• An Act of Parliament is required to implement sections 5 and 7 of the Recognition Agreement.

Clause 1: Short Title

Provides the short title of the Act, "Haida Nation Recognition Act".

Clause 2: Definitions

Provides definitions that apply throughout the Act, including the Haida Nation, Council of the Haida Nation, and Secretariat of the Haida Nation.

Clause 3: Recognition

Provides that the Government of Canada recognizes the Haida Nation holds inherent rights of governance and self-determination, and the Council of the Haida Nation is the government authorized to act on behalf of the Haida Nation.

Clause 4: Powers

Provides that, in accordance with the Constitution of the Haida Nation, the Haida Nation exercises its governing powers through the Council of the Haida Nation.

Clause 5: Capacity, rights, powers and privileges

Provides that the Council of the Haida Nation is a legal entity with the capacity, rights, powers and privileges of a "natural person".

Clause 6: Immunity and vicarious liability

Provides that no action or other proceeding for damages may be instituted against a representative of the Haida Nation or a public official for anything done or omitted in the exercise or performance of any power, duty or function, unless it is established the person acted in bad faith.

Provides that the Haida Nation, Council of the Haida Nation, or a public entity established by the Council are not absolved  from vicarious liability arising out of anything done or omitted by a representative of the Haida Nation or a public official in the exercise or performance of any power, duty or function.

Provides definitions of "public official" and "representative of the Haida Nation" that apply in this clause.

Clause 7: Orders and regulations

Provides the Governor in Council authority to make orders and regulations necessary for the purpose of the Act.

Clause 8: Interests, obligations, etc. vested or transferred

Provides confirmation that, on the coming into force of section 4 of the British Columbia Haida Nation Recognition Act, and the dissolution of the Secretariat of the Haida Nation society under the British Columbia Societies Act, all interests, assets, properties, tenures, obligations and liabilities of the Secretariat are transferred or vested in the Council of the Haida Nation.

Clause 9: Continuation of Agreements

Provides confirmation that agreements that were entered into between the Secretariat of the Haida Nation and Canada before the coming into force of section of 4 of the British Columbia Haida Nation Recognition Act continue in force in accordance with their terms as if the agreements were entered into by the Council of the Haida Nation.

Clause 10: Continuation of legal arrangements

Confirms that the Act does not affect legal arrangements between Canada and the Skidegate Band Council and Old Massett Village Councils or members of the Skidegate band and Old Massett Village Council band.

Background

The Haida Nation is located on the Haida Gwaii archipelago off the north coast of British Columbia, with a registered population of approximately 4,942 members. The Haida Nation has a formalized governance system as set out in the Constitution of the Haida Nation (Haida Constitution), and consists of 14 elected representatives and two representatives appointed by the Haida Old Massett Village and Skidegate band councils. The Haida Constitution also vests the governing power of the Haida Nation in the Council of the Haida Nation.

On August 13, 2021, the Haida Nation, British Columbia, and Canada (the Parties) signed the non-binding GayG̱ahlda "Changing Tide" Framework for Reconciliation (GayG̱ahlda "Changing Tide"), providing a foundation for a renewed process of negotiations for incremental reconciliation agreements as an alternative to the Haida Nation's Section 35 Rights litigation, which was initiated in 2002 and remains active while negotiations proceed. In GayG̱ahlda "Changing Tide," Canada and British Columbia set out principles recognizing inherent Haida Title and Rights throughout terrestrial Haida Gwaii, and the Parties committed to a negotiating process to address Haida priorities, as well as an approach for managing litigation and negotiations.

On July 18, 2023, Canada signed the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement (the Recognition Agreement), the first incremental reconciliation agreement reached under GayG̱ahlda "Changing Tide". The Haida Nation and British Columbia signed the Recognition Agreement on April 4 and 24, 2023 respectively. The Recognition Agreement is a legally binding agreement in which Canada and British Columbia recognize that the Haida Nation holds inherent rights of governance and self-determination, that the Council of the Haida Nation is the government of the Haida Nation, and that the Council of the Haida Nation is the entity authorized by the Haida Nation to make decisions regarding Haida Title and Rights.

Legislation

Signing the Recognition Agreement formalized Canada and British Columbia's recognition of the Haida Nation as a rights-bearing collective, and the Council of the Haida Nation as the government of the Haida Nation. Both federal and provincial enabling legislation are required for sections 5 and 7 of the Recognition Agreement to be given the force of law and apply to third parties.

Accordingly, on May 9, 2023, the Government of British Columbia passed Bill-18, Haida Nation Recognition Act,to implement sections 5 and 7 of the Recognition Agreement. The proposed federal legislation would also implement these specific sections of the Recognition Agreement.

Engagement Process

The Haida Constitution sets out consultation requirements, including through the official national publication of "Haida Laas", to keep its citizens and community informed, and commits to pursue the goals of the Haida Nation through negotiations and diplomacy, including with regards to international agreements.

Following the negotiation of the Recognition Agreement, the Haida Nation followed an approval process that included a staged process of community consultation, recommendations by the Haida Lands & Title Committee and Hereditary Chiefs Council, and final approval by the Council of the Haida Nation.

Key Elements of the Proposed Bill

The proposed legislation would affirm the following:

• The Government of Canada's recognition of the Haida Nation as the holder of inherent rights of governance and self-determination;
• The Council of the Haida Nation as the government of the Haida Nation;
• The Council of the Haida Nation as a legal entity with the capacity, rights, powers and privileges of a natural person; and
• The Haida Nation, Council of the Haida Nation, or other entities established by the Council may be held vicariously liable for loss or damage caused by Haida representatives or public officials.

Additionally, the proposed bill would demonstrate the Government of Canada's commitments to recognize Indigenous rights and support self-determination consistent with obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act passed in 2021.

Next Steps

The Government of Canada will continue to advance the next negotiation priorities with the Haida Nation and British Columbia, in collaboration with implicated departments and agencies. Future reconciliation agreements are projected for the negotiation of Haida Title and Rights and are intended to remove matters from the Haida Nation's Section 35 Rights litigation, starting with the Haida Gwaii terrestrial area.

Negotiations will continue on priority topics that include Haida Title lands, protected areas, core governance, and financial arrangements for the Haida Gwaii terrestrial area. Other subject matters, such as those related to the Haida Gwaii marine area, are projected for a longer-term negotiations agenda.

Haida Section 35 Rights Litigation

The Haida Nation's claims regarding title and rights to Haida Gwaii were first accepted for negotiation by Canada in 1986. In 1993, the Haida Nation entered the British Columbia Treaty Process, represented by the Council of the Haida Nation.

In 2002, the Haida Nation initiated legal action against Canada and British Columbia (Haida Section 35 Rights litigation) seeking a declaration of Aboriginal title and rights to the entirety of the Haida Gwaii archipelago, as well as to submerged lands and marine areas, water column and surmounting airspace, and an area of the sea that comprises part of Canada's Exclusive Economic Zone. A trial is currently scheduled for early 2026.

Courts have held that Aboriginal rights are protected by Section 35 of the Constitution Act, 1982 and include Aboriginal title, which conveys ownership rights to the land, including the right to decide how the land will be used, the right of enjoyment and occupancy of the land, the right to possess the land, the right to economic benefits of the land, and the right to proactively use and manage the land. The 2004 Supreme Court of Canada decision, Haida Nation v. British Columbia (Minister of Forests), indicated the Haida Nation has a prima facie case for Aboriginal title and rights within Haida Gwaii.

In this context, the Recognition Agreement will serve as a step toward other incremental reconciliation agreements that more fully recognize and affirm Haida governance and jurisdiction, with the potential for reducing the scope of the Haida Section 35 Rights litigation. The agreement includes a commitment by the Parties to negotiate other reconciliation agreements that would further clarify Haida governance and jurisdiction, and the relationship between the Council of the Haida Nation and Crown governments, laws, jurisdictions and management within Haida Gwaii. Substantive elements regarding governance and jurisdiction will begin to be addressed in this next stage of negotiations.

In the meantime, the Recognition Agreement does not recognize any specific title or rights within any specific area of Haida Gwaii.

Consultation and Parliamentary Ratification

The Government of Canada has collaborated with the Haida Nation and British Columbia as legislation was being drafted. The Recognition Agreement came into effect at the time of signing, except for sections 5 and 7, which require provincial and federal legislation to implement. British Columbia passed Bill 19 - Haida Nation Recognition Act on May 9, 2023.

In November 2023, the Government of Canada shared the draft legislative proposal with the Haida Nation and British Columbia. The Haida Nation and British Columbia have signaled their support for the draft proposal, which has been developed collaboratively.

The proposed legislation is required to implement sections 5 and 7 of the Recognition Agreement and would need to be passed by Parliament. If the proposed bill is passed, it comes into effect upon Royal Assent.

Recognition

The proposed legislation would affirm that the Government of Canada recognizes that the Haida Nation holds inherent rights of governance and self-determination, and that the Haida Nation exercises its governing powers through the Council of the Haida Nation.

Legal Status and Capacity

The proposed legislation would also affirm the Council of the Haida Nation as a legal entity with the capacity, rights, powers and privileges of a natural person.

Liability and Accountability

Under the proposed legislation, the Council of the Haida Nation and the Haida Nation may be held vicariously liable for loss or damage caused by Haida representatives or public officials.

Existing agreements, interests and obligations

The proposed legislation confirms that, on the coming into force of section 4 of the British Columbia Haida Nation Recognition Act, existing agreements, interests, and obligations held by the Secretariat of the Haida Nation incorporated under the provincial Societies Act would continue and transition to the Council of the Haida Nation.

Other Acts

No amendments to other acts, including the Indian Act, are required as a result of the proposed legislation. Existing legal arrangements between Canada and the Haida Old Massett Village Council and Skidegate bands will continue under the proposed legislation.

Orders and Regulations

If passed, the legislation would confirm that the Governor in Council may make any orders and regulations that are necessary for the purpose of the Act.

Implementation

The Haida Nation, British Columbia, and Canada (the Parties) have agreed to an incremental approach to reconciliation negotiations. The proposed legislation is an important step in a process to recognize that the Haida Nation holds inherent rights of governance and self-determination, and to recognize the Council of the Haida Nation as the government of the Haida Nation.

If the proposed legislation is passed, it comes fully into force upon Royal Assent.

Next Steps

The Government of Canada will continue to advance the next negotiation priorities in collaboration with implicated departments and agencies. Future incremental agreements are projected for the negotiation of Haida Title and Rights, and are intended to remove matters from the Haida Nation's Section 35 Rights litigation, starting with the Haida Gwaii terrestrial area.

Negotiations will continue on priority topics that include Haida Title lands, protected areas, core governance, and financial arrangements for the Haida Gwaii terrestrial area. Other subject matters, such as those related to the Haida Gwaii marine area, are projected for a longer-term negotiation agenda.

The Parties also have initiated a working group for addressing taxation matters, including those related to sections of the Nang K̲'uula • Nang K̲'úulaas Recognition Agreement that could have tax consequences following the dissolution of the current Haida society under British Columbia's Societies Act and resulting transfers to the Council of the Haida Nation.

The Parties have agreed to reassess their negotiation progress in early 2025.