An interview with Dave Joe
Dave Joe is a citizen of Champagne and Aishihik First Nations. He is a distinguished lawyer who was called to the bar in 1977 in the Yukon and in 1999 in British Columbia. Dave has worked as chief negotiator for the Council of Yukon First Nations and a number of Canadian First Nations. He still acts as legal advisor for Yukon, British Columbia, and Northwest Territories First Nations.
DAVE JOE: I'm Dave Joe. I'm a citizen of Champagne and Aishihik First Nations and I was born and raised in Klukshu.
MEAGAN PERRY: At the camp there?
DAVE JOE: Down by the creek right where the fish traps are. We had a tent there and that's where I was born and raised.
MEAGAN PERRY (VOICE OVER): Lawyer Dave Joe has been on the front line of self-government and land claims negotiations in the Yukon since his teenage years. He was there in the '70s when Yukon Chiefs wrote the document outlining their plan for self-government. It was titled, Together Today for our Children Tomorrow. He was also present in the '90s when the Yukon Chiefs signed the Umbrella Final Agreement, or UFA, the agreement on which the Yukon model of aboriginal self-government is based. That model has led to great change in the Yukon. 11 of the 14 First Nations in the territory are now self-governing First Nations. To this day Joe continues work to negotiate land claims across Canada. In February of 2011 Dave Joe invited me to his Whitehorse office to talk about his role in developing Yukon's version of modern-day aboriginal self-government. I'm Meagan Perry and I started by asking him what it was like to see 20-plus years of work come to fruition when the Umbrella Final Agreement was signed.
DAVE JOE: It was a fairly jubilant occasion, keeping in mind sort of the history of our people. We were forbidden to raise issues of land claims self-government officially from about 1927 to about 1951. So to basically come out from under the auspices of the federal Crown who were fairly punitive in terms of their approach to Indians, it was a great day. It was just a reflection that Yukon and Canada and Yukon First Nations have evolved into a partnership that was reflective of law-making capacities.
MEAGAN PERRY: For people who aren't in the Yukon and who are listening from far away, can you describe for me Champagne and Aishihik First Nations?
DAVE JOE: I certainly can try. Champagne and Aishihik First Nations used to be an Indian Band, now called a First Nation. We are a member of the Southern Tutchone. We're about 1,200 citizens, most of whom reside in the Yukon territory, and we've got about 12,000 square miles of land as part of our traditional territory both in B.C. and Yukon. And this agreement here basically attempts to capture our law-making capacities within the Yukon itself, and the rest of our title and rights are still outstanding in the province of B.C.
MEAGAN PERRY: Tell me how you became involved in working on self-government and land claims agreements and what we call implementation, which is putting those agreements into practice. What's the personal connection to that work for you?
DAVE JOE: Well I was brought in as a fairly young man. I was asked by Chief Elijah Smith in that he was attempting to advance land claims agreements and he needed some help and approached me and said: would you help us, because we need trained people. At that point in time of course I didn't have high school yet. And basically he said: we need help, and if you believe in the cause, we can assist you as you're going to school. So I did. I went to school. I went to law school and came out and assisted them. And initially they did approach me at a potlatch and essentially told me about their vision of land claims settlement for their people and asked me could I help them. And I said sure, I could do that.
MEAGAN PERRY: Were you surprised when they came and asked you? What was your reaction?
DAVE JOE: I – well at the time I must have been about 14 years of age and normally, historically, as part of our society you grow up fairly young. And so I was somewhat surprised because these were people that I greatly respected. And it sounded like they were pretty serious about their quest to achieve a settlement for their people.
MEAGAN PERRY: And so at the time had Together Today for our Children Tomorrow been put together?
DAVE JOE: No, at that point in time – this would have been about the mid-'60s and Together Today only came together as a document in the early '70s as part of the push for a modern land claims settlement.
MEAGAN PERRY: Maybe explain that document for people who don't know what it is.
DAVE JOE: That document was basically a petition to the House of Commons, keeping in mind that between 1927 and 1951 Indians were forbidden to advance a land claims agreement. So when that law came off the books in 1951 the Nisga'a went to court, and of course they were successful in asking the question about whether or not there was something called Nisga'a title in common law. And the court divided on that issue and that Supreme Court of Canada ruling came out in 1973. And two weeks thereafter we had taken the Chiefs, along with this petition entitled Together Today for our Children Tomorrow, to Pierre Trudeau and said look, you stopped the treaty-making process in Canada. In 1921 was the last treaty you entered into. There are unsettled land claims in the rest of Canada, especially in the Yukon Territory. Don't you think that it's time to re-engage in that process? And we weren't sure if he would accept it but because the Supreme Court of Canada split on the question about the existence of our title to the lands he felt compelled, I thought, to say yes, I will sit down and negotiate a settlement with you. And so that was a pretty exciting time.
MEAGAN PERRY: Yeah, I'll bet. And what was it like to be working on that document? Because you were in those meetings, I'm assuming, if you were invited to be part of the process.
DAVE JOE: Yes, I was 22 years of age at the time, the executive director. But all we were interested in was trying to re-initiate the process by talking about the possibility of land claims. And we weren't sure if Canada was prepared to accept that approach because it's been about 60 years or so since they stopped that law-making process. And so they re-engaged and it was good.
MEAGAN PERRY: Lots of heated discussions?
DAVE JOE: Yes. I – when Pierre Trudeau first came up here the first time – it was back in '69 I think – and he was asked the question about when he was going to recognise our title to the land. And he said: what is your form of title? I think that concept is a very nebulous concept. And about four years after he had turned around completely. He accepted it. And so within four years he himself had changed his mind about First Nation title to the land.
MEAGAN PERRY: And so from there you went on to the UFA. So achieving self-government – you've got the UFA and then you've signed your self-government agreement – achieving self-government, that's a long-term commitment. It's a long process to implement those agreements. As a negotiator you've seen the process from the perspective of a member of a First Nation. What do you think makes it successful?
DAVE JOE: I think it's successful because it's something that people wanted. This was their basic articulation. We need a power base. We need our power back. We need our people back. And we need control over our resource capacities back as well. And I think it's successful because it achieves all of those things. The people are now in charge of their citizens, their land, their resources, and basically it's a partnership as well. It's not a dictation by Canada. It's not a dictation by Canada and Yukon. It's an attempt to rationalise how one shares law-making capacities in the Yukon Territory and how the three parties have rationalised the sharing of the wealth and the power as well. And so I think it's successful because the parties basically said yes, this is something that we should try to do. And these agreements are not treaty agreements, as you know. They are not entrenched as part of the supreme law of the land. So they have a fair amount of flexibility in that respect.
MEAGAN PERRY: And what do you think about when you look back on your years that you have worked to develop self-government in the Yukon?
DAVE JOE: I think that – one would have to place it in a historical perspective, I think. We basically came from a Band Council system with very little law-making powers because we didn't have any reserve lands up here. So the Band Council powers generally speaking are applicable to reserve lands, and of course we didn't have them. And Canada was undergoing their own change as well. They were going to repatriate the law-making capacities of Canada itself back in 1982 and say we are going to return all of the law-making to the sovereignty of Canada. So we pushed hard to ensure there was a place for First Nations within that law-making construct, and we were successful. We got Section 35 which recognised all of our existing rights to get the recognition of the inherent right of self-government. And we never, ever managed to achieve that. So I think that's the next step within this process, is sort of a reconciliation or debate in Canada about what we do about that unfinished business.
MEAGAN PERRY: Now I want to go back to implementation here. So it's important for Yukon citizens to understand the Umbrella Final Agreement, the Yukon First Nation final agreements, self-government agreements, land claims agreements. What's your plain language explanation for Yukoners who ask you about that or for people down south who ask you about how self-government works in the Yukon? Do you have one?
DAVE JOE: Yeah. It's fairly simplistic. There's four things. One, initially as part of the common law we've got rights and interests to the land itself. We decided to take half of that and crystallise them as treaties, and these rights are within the UFA itself. And so that agreement includes 28 chapters. Now where it says that a First Nation final agreement could deviate in some way from what's expressed within the common 28 chapters, a First Nation final agreement could do that. They can put their own twist to that section or that chapter. And I'll give you one example. Where I come from – Champagne and Aishihik – we have a National Park. Not every First Nation has a National Park. And we have rights within Kluane National Park. We have the exclusive rights to, for example, hunt, fish, trap, etc. And so our final agreement basically allows how that is reflected. And so the UFA sets out a template to say that's possible, and the Champagne and Aishihik Final Agreement crystallises exactly how those rights would play out. It's a contract with Canada. We basically said to Canada let's agree that there is a series of rights that we've got. One is an exclusive right to control all of those matters within the treaty or the final agreement itself. Two, that we can design ourselves as people. Champagne and Aishihik has a clan system, Wolf and Crow. We could incorporate that into our structures as to how we manage our affairs. And thirdly there is a set of laws that are applicable to our people throughout the Yukon Territory. That's agreed by way of contract. We can pass these laws, like over childcare. And then fourthly that there are some basic laws that we could pass such as land laws and taxation laws. And so in that construct we managed to develop basically a partnership.
MEAGAN PERRY: Sometimes it's difficult for younger people to recognise the changes that self-government might have brought to their lives. And I wonder if you could think of a concrete example of the day-to-day benefit of self-government?
DAVE JOE: Yes. We now have the capacity to control our lives and our laws. And I'll give you one example. When I was a kid growing up my parents did not have any choice but to put me in boarding school – res school – from the ages of 7 to 16. That was a law that is still on the books of Canada under the present Indian Act. But now the First Nation laws in respect to childcare schooling basically would be paramount, or stronger than, those laws. They can control uses of their lands, control their citizens, and all of those issues. And so we can decide whether or not we grant bursaries to our kids, who, what the criteria is. All of that in the past was controlled outside of the First Nation structures. And now we have complete control over those issues and I think that's a good thing. And the way that I view it is that the rights that we have is a blank cheque. We can basically write the laws as we deem advisable. It can be premised upon our historic values, our culture, or not. It could reflect contemporary values. I recognise that, of course, all of this must work in partnership with both Yukon and Canada and that's – that is always part of the struggle. It's not a complete answer but it certainly is an answer that attempts to rationalise our place at this point in time without saying yes, all of these rights are part of a treaty right and that's all you've got.
MEAGAN PERRY: So taking that blank cheque and making all those laws, that's implementation. The self-government agreements in the Yukon are unique and implementing them takes some time. Do you have predictions about how governments are going to overcome some of the challenges? Are there any successes that point to how those challenges will be overcome?
DAVE JOE: Yes, I think that as a people we basically have all of the same basic needs and drives. And we in the Yukon also are unique in the sense that we don't have a prescribed constitution. We're not a province yet. And I think part of the future issue is how we develop the Yukon Territory. What are the next – and I think it's too simplistic of an answer to say well, we're the Yukon Territory. We'll become a province and this is what we'll do. I think we can go beyond that. We can basically rationalise a place that is unique in Canada that is reflective of the history of the Yukon and the fact that we can celebrate these agreements that were premised upon partnerships and our common understanding to do good for all people.
MEAGAN PERRY: Now you've negotiated in so many contexts here. And as self-government and land claims are implemented in the Yukon what do you think the priority items need to be? Are there any, or are they all equal in your mind?
DAVE JOE: Well I think one of the first things is that historically within the mainstream system you always have like a balance of powers, you know. You've got the courts, you've got the executive, you've got the law-making branches. And I think one of the things for the Teslin Tlingit, for example, is now they have a court system in place to interpret their customary and their statutory law. And I think that's important. I also think it's equally important that the fiscal transfer agreements that reflect sharing of wealth, that's important as well. And as we go beyond that I also think that it's important to recognise that as First Nations occupy the field that there has to be some form of a transfer of programs and services to them. And that could be rationalised in the context of working out some sort of an acceptable fiscal transfer sharing agreement in the Yukon. And I think those three things are important. And lastly I would say to be responsive to the needs of the people.
MEAGAN PERRY: It's a big job.
DAVE JOE: It is indeed a huge job. It's a challenge and it's a challenge that was advanced by our people and I think it's a challenge that could be responded to successfully.
MEAGAN PERRY: And one last question which is you've been involved in this for so long, what's it like to be part of the history of the Yukon?
DAVE JOE: Well I haven't really reflected upon that. For me personally it's been an honour to work with great people like Chief Smith – from all sides, from Yukon, from Canada, from Pierre Trudeau, Tony Penikett. You know the names could go on and on. But we managed to not look at it, say, from a historical perspective – how are people going to judge us and how would I feel about that in my role? We were attempting to eke out solutions in the context in which we were dealing with and we managed to push successfully sort of the goalposts way out. They were fairly constrictive at the start, until a view of all of the rights that you think you've got have been extinguished, you've got nothing, so don't even talk to us, to the fact that hmm, perhaps you've got a bit more than we initially thought. Let's sit down and let's work out a deal. And currently we are at a place in which we now sit down at a constitutional table and attempt to sort of rationalise what kind of future Yukon could have. So for me in a historical context it's been all very exciting.
MEAGAN PERRY: Thanks for talking to me today.
DAVE JOE: Oh, you're quite welcome.
MEAGAN PERRY (VOICE OVER): That was Dave Joe who has been working for land claims and self-government for First Nations across Canada since the 1970s. The content of this interview is intended to deepen public understanding of the history of land claims and self-government implementation in the Yukon, and it represent the opinions and ideas of the interviewee alone. This series of podcasts was produced by the Implementation Working Group, a cooperation between the Council of Yukon First Nations, Government of Yukon, Government of Canada, and Self-Governing Yukon First Nations.