The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Cotter, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

Hon. Brent Cotter: Honourable senators, I have the honour to present, in both official languages, the fifteenth report of the Standing Senate Committee on Legal and Constitutional Affairs, which deals with Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

(For text of report, see today’s Journals of the Senate, p. 1853.)

Hon. Brent Cotter moved second reading of Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.

He said: Before I begin, I want to acknowledge that Canada’s Senate is located on the unceded traditional territory of the Algonquin Anishinaabeg people.

I want to begin my remarks by talking about the War of 1812. Now, I wasn’t there, and I don’t think most of you were either, but it was a fairly important war. It was our only war with the United States of America, and you might recall that we won. Indeed, though lost to a degree in the mists of history, the political and governance structure of this continent and this country would be vastly different if that war had had a different outcome.

The Dakota were critical military allies of the British in that war. During the War of 1812, they defended what is Canada today and were presented with King George medals and promises that their lands and rights would be protected.

This was a major moment in an otherwise formative period of the Crown-Dakota/Lakota relationship that began in the mid-18th century, and in a context of increasing conflict between British North America and the United States.

In the years that followed, the Dakota did not feel particularly welcome — that is, those who resided in the United States — and Chief Whitecap was one of the leaders that journeyed north with his community to Canada. They wanted to remain part of a British territory and reminded authorities of the promises made to them.

It is an understatement to say that their commitment to British North America did not make them popular in the United States and, as I will emphasize later, since time immemorial the Dakota, and specifically the Whitecap Dakota, have governed themselves.

I will now say a few words about the history of the Dakota and, in particular, the Whitecap Dakota, and then a bit about self‑determination and self-government for the Whitecap Dakota First Nation and leading to this bill and agreement. In doing so, I hope to show why the bill we’re speaking about is critical to advancing reconciliation in Canada. I hope to show that, while some of the bill’s details might be new, the concepts of self-determination and self-government it is based on are not new. Indeed, what we’re doing is reviving what previously existed.

The Dakota are part of the Oceti Sakowin Oyate, the People of Seven Council Fires, which was an alliance of seven Dakota, Lakota and Nakota groups. These groups shared similar languages, history and culture and their territory spanned central regions of the United States and Canada.

The word “Dakota” means “friends, or allies” — meaningful in the context of the War of 1812, I think — and the Dakota/Lakota Nation successfully built alliances to establish peace and prosperity.

In the early 1860s, when many Dakota people sought refuge in the north, they were led by Chief Whitecap, Chief Standing Buffalo and Chief Little Crow. Chief Whitecap established his community along the South Saskatchewan River, and — you may find this amazing — went on to co-found the city of Saskatoon, my city.

Most of the bands are located in Manitoba and Saskatchewan. The Whitecap Dakota band is on a reserve about 30 kilometres south of Saskatoon. It is a small First Nation with a population of 692. It has a small parcel of reserve land, much smaller than other treaty nations in Saskatchewan. It’s near the South Saskatchewan River. It’s not on good land, and for more than a century the Whitecap Dakota struggled.

Let me speak a bit about its history, in particular dating to 1991, more recently, when Chief Darcy Bear became chief. The nation had an unemployment rate of 50%, its social and health services for its people were in tatters and the band’s finances were abysmal. Chief Bear told me recently that when he became chief, he was attending university and was in business school. As a student, he had a small amount of money in his bank account. By comparison, the band’s bank account had nothing and, in fact, it was overdrawn. He was, in a way, richer than his whole First Nation.

Where is the Whitecap Dakota Nation now? The band has developed services for its people in education, social services and health. It has established a range of business enterprises and it has an almost nonexistent unemployment rate. Among their best‑known businesses and enterprises are a First Nations casino — the most spectacular and successful in Saskatchewan — a world‑class golf resort and an adjacent hotel resort. When it opened, the Dakota Dunes Golf Links was selected the best new golf course in Canada. The Professional Golfer’s Association Tour Canada, or PGA, stops there every July.

The nation’s wise land management, a range of economic development initiatives and efforts to build a tax base for their own-source revenues is exceptional.

The Whitecap Dakota Nation is well known across Canada for this remarkable socio-economic development and the various successes of its business ventures and partnerships, many with the private sector and with the Province of Saskatchewan.

Though the reserve is small and the population, as I said, is only 692 people, its enterprises generate millions annually in own-source revenue for their community. This prosperity extends beyond Whitecap Dakota’s reserve and has significant benefits for neighbouring local businesses and the city of Saskatoon. For example, the on-reserve businesses employ as many non-First Nations people from off-reserve as there are citizens of the Whitecap reserve in total. About 650 non-members are employed at Whitecap; Whitecap is an economic engine for my city. In short, Whitecap is a strong, thriving community and has a long history of self-governance.

The Crown promised assistance and protection following their participation in the War of 1812. How did that work out?

Well, that promise was broken. Talk about breaking promises early. The war occurred in 1812, and promises were broken in the negotiations that concluded with the Treaty of Ghent in 1815 — three years later. These are the negotiations that ended the War of 1812.

The Dakota were not welcomed by the Crown as allies. Instead, they were permitted to stay in Canada but branded as “American-Indian refugees” in the decades that followed. When the Crown began entering into the numbered treaties with First Nations in Western Canada in the late 1860s, the Dakota were purposefully excluded from the numbered treaties.

As a result of unfair policy decisions made over a century ago, the Dakota have been denied formal recognition as Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982 — denied recognition as Aboriginal peoples until, hopefully, Thursday of this week. In every way but one, the Dakota nations have been treated as any other First Nation, Your Honour, and, generally speaking, the treatment has not been favourable. They were subjected to the Indian Act, residential schools, the Sixties Scoop, the pass system, the theft of their children, the reserve system and various other laws and policies that have failed Indigenous people and Canada writ large. The Dakota have shared in this experience and, at the same time, do not even have a constitutional foothold the way that other Indigenous communities have. They continue to exist today as “American-Indian refugees,” present in Canada at the pleasure of the Crown.

The Whitecap Dakota self-government treaty we’re talking about today in Bill C-51 will change all of that. It will reinforce the Dakota spirit of alliance, as was recognized way back when. What does the Whitecap Dakota Nation think of this bill? It is acknowledged to be the next step toward the First Nation’s vision of self-determination. The treaty is a product of 12 years of negotiations. Senator Arnot was an early proponent of this, and I hope he will speak about it himself in his remarks. It was approved by Whitecap Dakota membership through a community approval campaign that was aligned with their customary decision-making processes with 92% support in the fall. When, finally, the membership voted on this governance treaty, the vote was 100% in favour. Sounds fairly positive to me: strong community support.

What does Bill C-51 do? The bill does two things: First, it recognizes Whitecap Dakota as a First Nation pursuant to section 35 of the Constitution. This changes their status from refugees to an Aboriginal people recognized under section 35, correcting more than a century of injustice. Second, it removes Dakota Whitecap from the oversight of most aspects of the Indian Act and recognizes a range of governmental authorities for Dakota Whitecap in the self-government treaty. As we know, many federal laws and policies, including the Indian Act, have constrained First Nations governance.

First, the Indian Act imposed a colonial form of governance on Dakota Whitecap, and so many other First Nations, with limited forms of local administration. For decades, the Dakota Whitecap have been working to leave the Indian Act. They had a series of initiatives from 1989 to 2012 and have removed themselves, as if percentages matter, from about 35% of the Indian Act’s control over Whitecap Dakota — steps toward reclaiming self‑governance.

To replace this very large Indian Act framework in this treaty and self-government agreement, the governance treaty provides that the Government of Canada will recognize the First Nation and give it jurisdiction over core governance; membership; language and culture; lands management; emergencies; public order; peace and safety; taxation; environment; resource management; agriculture; public works and infrastructure; local traffic and transportation; wills and estates; education; health; licensing, regulation and operation of businesses; economic development; alcohol, gaming and intoxicants; landlord and tenant matters; and the administration and enforcement of Whitecap Dakota laws. It’s a pretty spectacular range of governmental authority.

I want to say a word or two about taxation, and here I will leave my prepared remarks, if I may.

One of the great constraints of the Indian Act and the Canadian relationship with First Nations, in my view, is that we have not moved to models like own-source revenues and the building of financially accountable governments. We have relied too much on transfers from Ottawa.

We need to build the models of government that communities need and want. One of the keys to that is building a taxation regime that a government can administer itself. From my briefs with government officials over the past few days, I understand the Department of Finance has been working to negotiate a complementary real property tax agreement and tax treatment agreement setting out the scope of Whitecap Dakota’s tax jurisdiction on reserve lands.

The department highlighted that Whitecap Dakota have proven successful with innovative taxation tools and powers and that these complementary agreements yet to come will provide the community with added taxation powers to advance this interest. In fact, the real property tax agreement set out in this legislation is the first agreement of its kind in the country.

Senators, this is good legislation. It puts decision-making power back in the hands of Indigenous governments to make their own choices about how to deliver programs and services to their own communities. The bill also, I should say parenthetically, renames the self-governing entity the Whitecap Dakota Nation. They lost their name when they left the Indian Act, and they needed a new one. This is the one the community wanted, and it is a good one.

This bill is a major step to revive self-governance and self‑determination for the Whitecap Dakota people who have contributed to our country for a very long time, and that contribution has not been well recognized. It is also an important step for reconciliation, moving past colonialism and paternalism, toward legislation grounded in equality and respect.

Honourable senators, I encourage you to join me in taking this next step.

Thank you, pidamayado.

Hon. Mary Jane McCallum: Would Senator Cotter take a question?

Senator Cotter: I certainly would.

Hon. Yonah Martin (Deputy Leader of the Opposition): Senator Cotter, thank you for your speech. I enjoyed the historic piece on the journey of the Whitecap Dakota Nation.

Honourable senators, I rise today to speak to Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.

On Tuesday, May 2, 2023, the Whitecap Dakota Nation signed a self-government treaty recognizing them as a section 35 rights holder in Canada. Those negotiations began in 2009 under the former Harper government. The agreement was co-developed in consultation with the Whitecap Dakota First Nation, and affirms their inherent right to self-government under the Constitution Act, 1982. The treaty is the first of its kind in Saskatchewan.

The Whitecap Dakota First Nation was an ally of the British Crown, as explained by Senator Cotter, and, through historical oversights, they were never given that proper recognition. This legislation aims to correct the oversights from past governments, and to provide the Whitecap Dakota First Nation with its own self-government treaty.

This legislation has been in negotiations for 13 long years, and has been a joint effort between the Whitecap Dakota First Nation; Conservative Minister Chuck Strahl and Conservative Minister John Duncan; and Liberal Minister Carolyn Bennett and Liberal Minister Marc Miller.

I am pleased that it was expedited through the other place, and I hope that we can accomplish the same here in the Senate.

The bill recognizes that the Whitecap Dakota First Nation has jurisdiction and law-making powers on their reserve lands over governance, land, natural resources, membership, cultural matters, language revitalization and preservation, education, financial management and accountability, health and social services. The treaty is seen as an important opportunity for the Whitecap Dakota First Nation to move out from under the Indian Act.

The bill does several important things: It recognizes the Whitecap Dakota First Nation as Aboriginal peoples with full section 35 and section 25 constitutional rights. It constitutionally protects their inherent right to self-government as set out in the treaty. It strengthens their position to treat with Canada in the future on lands and titles. It removes the First Nation from the Indian Act. And it ensures that the Whitecap Dakota First Nation can still access the First Nations Fiscal Management Act.

The Whitecap Dakota First Nation fully supports the bill, with Chief Darcy Bear stating:

I am incredibly proud of our community as we make history together to better the lives of generations to come. Our Governance Treaty with Canada affirms our place as Dakota peoples alongside all other Aboriginal Peoples in Canada with constitutional protections. It also establishes a Whitecap Dakota government with the tools and status to continue to build our nation and contribute to Saskatchewan and Canada as whole.

The entire community was part of the process; a Whitecap advisory committee of elders, youth, women and community members helped to shape the agreement, and ensure the process protected First Nation perspectives, culture and customs. As a result, 92% of Whitecap members voted to approve the treaty, which affirms the First Nation’s inherent right to self‑government.

When asked about the importance of finally being recognized as a section 35 rights holder in Canada, as well as what that means for his community, Councillor Dwayne Eagle said to the House of Commons Standing Committee on Indigenous and Northern Affairs:

I’ll get a little personal. Sometimes when there’s a dispute with other First Nations, they say something like, “go back to where you came from.” We’re from Canada. That’s our land and territory. Once they recognize us as Aboriginal peoples of Canada —

That’s one of the things that we talked about with our community. They want that. They want to make sure that’s included in the agreement. It’s pretty important for us.

Honourable senators, I have kept my comments brief in recognition of the importance to pass this bill as quickly as possible. The recognition inherent in Bill C-51 is important to Whitecap Dakota First Nation members and elders. It protects their self-government treaty, and from here we can move forward and build on reconciliation efforts with the community.

As Fraser Tolmie, MP for Moose Jaw—Lake Centre—Lanigan in Saskatchewan, said to the House of Commons Standing Committee on Indigenous and Northern Affairs yesterday:

. . . one of the frustrating things for me when I go through this history and this recent history is that it seems so simple. This should have been done such a long time ago . . . .

Honourable senators, let us not delay this any further. Conservatives support treaty rights and the process of reconciliation with Canada’s Indigenous peoples — and we support Bill C-51.