Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 16 - Evidence of May 27, 2003
OTTAWA, Tuesday, May 27, 2003
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-6, to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts, met this day at 9:05 a.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Our witnesses today are from the Treaty and Aboriginal Rights Centre of Manitoba Inc.; Manitoba Keewatinowi Okimakanak Inc.; the Federation of Saskatchewan Indian Nations; and the Association of Iroquois and Allied Indians.
I would suggest that you limit your presentations to between 10 and 15 minutes today so that we have an opportunity to ask some questions and enter into a dialogue and debate. If you feel after your presentation that you have not been able to address all the issues, we encourage you to make a note of them and we can consider them.
Chief Morris Shannacappo, Treaty and Aboriginal Rights Research Centre of Manitoba Inc.: Good morning.
[Witness spoke in his native language.]
I am here representing the treaty and research office in Winnipeg, but I am also representing the First Nations in Manitoba. I will give you an introduction or overview.
We participated in this process on behalf of the Manitoba First Nations. I am the Manitoba representative on the Chiefs Committee on Claims, a national body established in the early 1990s. One of the primary objectives of the Chiefs Committee on Claims was and continues to be to achieve positive claims policy reform in order to establish fair and more transparent, effective and efficient independent claims resolution in Canada.
I am also the chairperson of the Treaty and Aboriginal Rights Research Centre of Manitoba. The centre has been actively involved in the research and development of specific claims for our member First Nations for more than 20 years. We have provided technical and historical research services to member First Nations in the negotiation of claims accepted by Canada. In addition, the centre participated in the joint First Nation/Canada Task Force on Claims that issued its report and recommendations on specific claims policy reform in November of 1998. It is based on this extensive experience in the specific claims process that we may offer these comments on the Specific Claims Resolution Act.
It is the centre's opinion that Bill C-6 is deeply flawed in a number of significant respects because of Canada's unilateral power of appointments and reappointments to the body to be established under the proposed legislation. We believe the independence of the body will be severely compromised. We believe that the body will be neither effective nor efficient, as there are no time frames to the stages of the process. It is our opinion that this proposed legislation offers the unfortunate prospect for indefinite delays in the process.
The new claims body will not be fair, as Canada retains an unacceptable amount of control over the process. In short, we believe that a new claims policy will not represent a step forward in the specific claims resolution process. In most respects, it will be a step backwards.
Instead of efficiently and effectively addressing the outstanding backlog of claims already in the system, currently estimated at 600, we believe the new process will result in an ever-increasing backlog of claims. It is our opinion that because of its many significant flaws and defects the bill should be withdrawn.
We also believe the only way in which a new and truly independent claims body can be developed is through a joint First Nation/Canada process such as the joint task force on claims. The JTF report of November 1998, which was the product of a joint approach to a specific claim policy reform, is proof of what can be accomplished through cooperative effect. What is required is to return to the cooperative joint approach in order to develop a truly independent claims body that is fair, effective and efficient.
Our TARR centre in Manitoba was established in 1982 to aid its Manitoba First Nation membership in the research and development of specific claims. TARR was originally a program administered by the Manitoba Indian brotherhood in early 1980. The First Nations of Manitoba decided to remove TARR from the structure of any provincial or regional First Nation political body and establish it as a separate body to work exclusively on specific claims on behalf of its member First Nations.
The centre is still directly accountable to its member First Nations through a board of directors, and these are selected from various regions in Manitoba. The board oversees the activities at the centre in terms of both its research and financial expenditures. At present, the centre has a membership of 51 Manitoba First Nations out of 63. The centre operates two research offices, the primary office being in Winnipeg, and the other in northern Manitoba in Thompson. Attached to this presentation is a brochure from our centre.
I will turn now to the specific claims in Manitoba. Since its establishment, the primary function of the TARR centre has been the research and development of specific claims on behalf of our First Nation membership. We have undertaken research on a wide variety of claim issues, from illegal reserve land surrenders, to treaty entitlement, that is, reserve land owed to First Nations under the terms of treaty. We have uncovered a significant number of historical situations where, as a result of federal government action or inaction, Manitoba First Nations suffered losses for which redress is required.
During the time since the treaties were signed in Manitoba and reserve land was set aside for Manitoba First Nations, according to the terms of those treaties, there have been many instances when Canada did not act in the best interests of the First Nations in relation to protection of those reserve land bases. In addition, the terms of treaties have not always been fulfilled, in some cases relative to the extent of reserve land provided; in other cases failure to abide by the terms of a treaty in protecting other rights embodied therein, such as hunting, trapping, fishing, and gathering rights, Canada has not always acted in the best interests of First Nations and protected their rights. As a result, claims can and do arise.
In Manitoba, only 0.04 per cent of lands are under the control of First Nations. In all respect to Canada, 0.04 per cent of lands are registered to and in the control of First Nation people.
Each year approximately $710 billion of natural resources leave this country. Less than 10 per cent of that is shared by First Nation people, shared by the towers that stand in Hull, in Winnipeg, and right across Canada, that house Indian Affairs Department workers. We share that with the Metis and the Inuit, and we are being hit left and right on accountability issues for monies on which we can barely survive.
The land issue is, in fact, a modern day treaty issue. In any treaty, two parties are involved. The parties are after one main item and that is natural resources. The treaties are based on shared resources and the present process is a result of the treaties that were signed in the 1800s.
We bring that treaty issue to the table today. We were promised that we would be treated in a certain way over time. We were told that we would maintain the determination of our own peoples, and that we would enjoy the lands within our communities.
Treaty 2, in Manitoba, was negotiated on the basis of First Nation people being able to retain their traditional lifestyles.
These comments are nowhere to be found in my paper. I decided to put my prepared speech to the side and speak from the heart as I was taught to do by my Elders. People who are very work-friendly to my people have written this presentation. These studies of my people tell us we are not being well treated under the treaties.
When we talk about past day treaties and how the land was supposed to have been shared, Alexander Morris said that the government would, in good faith, sit with the Aboriginal peoples of this country, and discuss the resources and how they should be shared among all the people.
There is no reason for any race in this country to live in a state of poverty, especially the First Nations, the original inhabitants of this country. The very fabric of this country was developed through negotiation and now we are being told we have no say in the sharing of the land and its resources.
This might be one of my last speaking engagements at this table. I am here to tell the people of Canada that I am a leader in my community. I am part of a tradition much like Canada and its traditional government.
We have adopted much of the policy created by the Government of Canada, policy that is foreign to our ears, policy that has no business on my table at home. The only policy that belongs on my table is what the Elders have been passing down for ages. That policy is to treat everyone with great respect, to treat everyone with fairness and not to allow poverty in your community.
In my community, people awaken me in the night. I would like to direct them to the right department. I want phone numbers so that I can direct my people to the proper authorities. The people who elected me to speak on their behalf in order to try to find a better way of life for them are setting me up as the Indian agent in my own community.
My community signed a land entitlement treaty. Where are the people responsible for that treaty in this process? Why are they not testifying at the Treaty Land Entitlement Committee about the lands owed to First Nations? Representatives of our community sat on that committee, and we got some land back. That was five years ago. We are still paying taxes on the land, and for each child we send to school we are paying $6,000. Someone is double dipping. It is not the First Nations people, it is the school boards. We are paying tax on the land and we are still not allowed to put one single foundation on the land, Canada will not allow it.
We purchased land on a number 10 highway, where there a million traffic count. If I could secure 25 cents from every vehicle for my people in the area of economic development, maybe I would not have to be here, pressing these matters.
We want to get to a state where we have a even playing field in order that our people can say, ``This is what we want to contribute to society,'' not only to our own, but to the whole fabric of the Canadian structure itself. I strongly believe in that.
I have attended meetings with my First Nation people. I have brought people to the meetings to show accountability, to demonstrate to my Elders that they have to participate in the meetings, to show my youth that if they are to be leaders they have to participate at those sessions. They cannot just have their chief go and return with a report. We have suffered because we have taken much of that accountability money, or so-called taxpayers' money.
I remind you that $710 billion of natural resources leave this country and I identify with at least 10 per cent of that and believe that First Nations should be in control of that 10 per cent.
I identify with at least a bare minimum of 10 per cent of lands that First Nations people should be in control of, in order to carry their own determination and put in government and policies derived from our people. We do not want someone from Ottawa telling us how to live; those days are gone. We are all living in this country and we all want to make the best of it, but let us have that opportunity as well.
Since its establishment, the primary function of the TARR centre has been research. During the time since the treaties were signed, Canada has not always acted in the best interests of the First Nations. Since its establishment, the TARR Centre has operated under federal specific claims policy. We have researched and developed, on behalf of our member First Nations, and provided our assistance in various stages of specific claims. Throughout this process, the centre and its member First Nations have recognized and commented on the inherent inequity and the conflict of interest embodied in the federal specific claims policy.
In my community, when people come and ask me to make a judgment, it is very difficult. I have to pool my resources together. I bring the Elders to a setting such as this and we lay the issue on the table and discuss it. Even as the chief, I cannot stand up and claim to be the power holder in the community. That is an absolute crock. In my community, I say what my people tell me to say. I am here today because they have sent me. I did not come here on my own; I have been sent on behalf of my people.
This gentleman phoned me and said we could put together a presentation. I believe it is our responsibility to make a presentation. I said I would delete everything in my calendar to be here with you today.
It is very difficult to believe in a fair process when Canada is the judge, the jury and the hangman. I am sure that given the reversal of our roles you would rant and rave too. I am sure you would want to talk to someone else concerning the decision.
These are my feelings that come from my heart, but they are also the feelings of my people because they do know what is going on. I think it is the people here in Ottawa that really do not know what is going on in my community.
I welcome you and I invite you all to come to see my community; to come and see the prosperity that we can generate; to come and see the Commonwealth that I talk about, that I preach about literally to my people, that each and every one of you will afford your own homes. One day, when there is 95 per cent employment in this community, we will invite the local townspeople to listen to our plan and to our achievements. We will be able to say that one day we will go to their towns because we will not have enough employees in my community to fulfil that dream of my people. That is where we will take your so-called ``derelict people'' — the ones that you gave up hope on just like you gave up hope on us — and we will give them jobs and teach them to plug into mainstream society, to be responsible and to contribute.
I will ask Mr. Abramson to finish the presentation on the papers that were written by TARR.
I am articulate; I can read; and I have a university level in community economic organizational development. That is why we have developed a 10-year plan for my community that will take 20 years to implement. However, all the people are on side and they know that this is what we must do. I am rarely at home because I have to fight the very people who have said, ``We will help you.'' I present to the very people who have said, ``We have a Red Book and well help you find your determination.'' Just give us that power because we have found our determination; we know our determination; and we know where we want to go. All of that is falling on deaf ears.
We have a great big plan in place on how to bring our people together, how to teach our people to contribute, and how to bring our people out of debt. In my community, every year for the past four years, we have had 90 per cent employment for three to four months. We achieved that success by sitting at a table such as this and talking with our people. We did not tell them that we had all of the answers. We talked and came to an agreement as to how to solve our common problems.
The Chairman: Chief Shannacappo, do you have your written presentation so that it can be tabled here?
Mr. Shannacappo: Yes, I have copies for the committee.
Mr. Ralph Abramson, Treaty and Aboriginal Rights Research Centre of Manitoba Inc.: As Chief Shannacappo said one of the chief problems with the current process is that Canada is in conflict of interest because it judges claims against itself. It has been the experience in Manitoba that this process is long and claims are just not fairly settled through this process. We participated in a number of joint processes so that we could develop a joint recommendation on how to improve the process, the latest one being the JTF, in the mid-1990s. Throughout that process, we developed what we thought was a fair way to resolve claims, whereby neither side was in control of the process because it was in the hands of an independent body. I must stress that First Nations and Canadian officials developed the JTF jointly. The JTF issued its first report November of 1998. The First Nations, at an Assembly of First Nations the following month, endorsed the report and determined that the JTF model was preferred as an independent claims mechanism in Canada.
Under this proposed legislation we see a move away from independence and a body that would have fairly, effectively and efficiently dealt with claims in a number of respects. We think that the independence of the mechanism is compromised by the fact that only Canada has the power to recommend appointments to the claims process. As a result, the people appointed will not feel responsible to the process and will instead feel responsible to the people who appointed them. Under the JTF, the joint appointment process ensured that appointees were responsible to both sides of the process. We think that this proposed legislation severely compromises the process. It will be neither efficient nor effective because of the lack of time guidelines. Under the JTF model, there were specific time limits for all steps of the process and there were ways to correct time problems. The time frames were tight but realistic under the JTF model. Under this proposed legislation there would be no such time frames. In fact, we believe that it holds prospects for indefinite delays. Under the JTF model, the commission part of the process could deal with the issues. The commission could hear from both sides and offer comments on how to resolve the issue. Under this proposed legislation the focus of the commission would not be to deal with the issues but rather to prepare submissions to the minister. The minister would then have an indefinite amount of time to decide whether to accept the claim.
We still think that Canada would retain too much power in the process. We think that the cap of $7 million per claim would restrict many issues that need to be dealt with. We also think that the drawdowns on the $7 million would also affect the body's ability to deal with claims fairly. We think that structural problems exist in the process. Under the JTF model, there were two bodies: a commission and a tribunal. The chief commissioner was also the chief executive officer. Under this proposed legislation there would be a separate chief executive officer and that could, at some time, cause jurisdictional or with authoritative problems between the chief commissioner and the chief executive officer. We envision many structural problems with such a setup.
It is the position of the centre that the bill should be withdrawn. The JTF process showed what could be accomplished through a joint approach, wherein both sides come to the table, identify the issues and try to find a resolution fairly. We believe that is the only way that a process can be established in Canada to deal fairly with these claims in an effective and efficient manner. As Chief Shannacappo said, there are 600 claims in the process. We believe that if this proposed legislation is implemented, the prospects for a reduction in that backlog will be nil. We believe that there will be an escalating backlog of claims.
This body has the opportunity to greatly influence the future of the specific claims resolution process in Canada. If you agree with Bill C-6, you will be making a bad situation worse. It is our opinion that the process would be a step backwards from the current, flawed process. If you reject this proposed legislation you will be helping to re-establish a required joint approach to specific claims policy reform. You will be ensuring than an independent, fair, efficient and effective claims body would be developed and implemented.
The Chairman: Mr. Ahenakew, please proceed.
Mr. Greg Ahenakew, First Vice-Chief, Federation of Saskatchewan Indian Nations: Good morning. I am here today representing the Federation of Saskatchewan Indian Nations. Part of my portfolio responsibilities is dealing with specific claims. I have with me the director of our Indian Treaty Rights and Research Program, which deals with specific claims primarily.
Our organization represents 74 First Nations and approximately 115,000 First Nations people in Saskatchewan; I speak on their behalf.
There has been a great deal of success in Saskatchewan with respect to specific claims. Almost one-half of the settlement dollars in Canada have come to Saskatchewan. I believe that this is a reflection of the program as well as of our researchers and staff who do an excellent job in respect of specific claims. In fact, the first settlement under the current policy was in Saskatchewan at White Bear, which is in the southeast corner of the province.
Unfortunately, there are still many unresolved Saskatchewan claims in the system, far too many. We have about 66 unresolved claims that either have been validated and are in the system or have not been validated and are in the system.
As you have heard from many presenters across the country, including the AFN, we want a truly independent claims process. By doing this, you will remove the conflict of having Canada judge claims against itself.
The FSIN has been an active participant not only in the process but also in the formulation of the joint task force report. We endorsed that process, and we continue to endorse a similar process. We agree with the legal analysis undertaken by the AFN, a copy of which you have.
Based on our extensive analysis and numerous technical and political meetings, we have concluded that this proposed legislation does not not provide the process to resolve claims. It will not be effective. It will not quicken the process. It does not not remove the conflict.
If the bill is passed as is, the result will be more claims being dealt with by the courts. The minister has said that that will not be the case. We disagree. It will be the case because there will be no Indian specific claims commission. There is no provision for an outlet such as that in the proposed legislation.
Both sides have to agree to binding arbitration. Canada has not, to this day, agreed to binding arbitration in any specific claim. Therefore, why would we expect them to agree now? There is no history and therefore, we are doubtful that any dispute resolution mechanism will work.
Today, I will focus on the four most specific flaws of the bill and how to change it to make it better. In a perfect world, the proposed legislation would be withdrawn. I believe that will not happen. My direction from the chiefs and First Nations of Saskatchewan is to try to effect change. If we cannot influence changes we will reject it. Today, I am here to tell you what we propose to change in the proposed legislation to make it effective, fair and efficient.
As an aside, I would like to suggest that the Senate committee consider commissioning an independent study. I do not know if it can be fixed by incorporating all the amendments that we will discuss with you.
The first flaw is the cap for claims above the monetary limit. What happens to those claims? First, you have a budget of $75 million, over three years for each year, thus a total budget of $225 million. There would be a cap of $7 million for the tribunal.
What will that encourage? If Canada says that this is working, then obviously, the tribunal will focus on claims under $7 million because of the numbers. If 25 claims are settled in the first year, it will be considered a success. Currently, claims are being settled at the rate of 4 to 14 a year.
You cannot address the current backlog by doing that. Will this new process fix that? No. It may well increase the number of claims settled. Our experience in Saskatchewan of the last several years has seen settlements of $24 million at Fishing Lake, $25 million in Kuwaitis and $94 million in Kahkewistahaw. There have been settlements in Moosonee and Thunder Child of $50 million and $40 million.
The tribunal simply would not deal with those claims because they could not. What is the process? You cannot fix it by saying that you have $75 million and 10 lawyers for all the claims across Canada. You simply cannot.
Look at the residential school issue. Over 100 lawyers were hired, just like that.
Canada has legally binding obligations yet they are not putting through many claims of large size simply because of fiscal reality.
If I go to a bank and borrow money for a mortgage, I cannot claim fiscal reality, and say I cannot pay because I do not have the money. I would lose my house. If we could do that to Canada, it would be great, but we cannot. We have to litigate. Litigation is the last resort for us, because we cannot afford it.
There must be a mechanism. My recommendation is that there not be a cap on validity and being heard by the tribunal.
For example, I mentioned that Kahkewistahaw had a claim settlement of $94 million. They would never have been able to go to tribunal. Bigger claims would be put aside although they may be valid. Canada would be saying that it agrees with the amount claimed, but it does not not have the money.
It is very difficult to see the sense of a cap. If you must have new legislation, then withdraw the cap. There is not a need for a cap. Larger claims will definitely be treated differently. There is no doubt about that. It is difficult as a First Nations leader to say to my people, ``Yes, we recommend that you accept this bill, as is.'' We cannot do that.
The amendment that we are suggesting would remove the cap on validity of all claims. An amendment is required that would permit access to the tribunal for the validity of all claims regardless of size.
This amendment would read in clause 32, by replacing lines 36 to 43 on page 14, and lines 1 to 8 on page 15 with the following: ``validity of a specific claim to the Tribunal.'' Alternatively if the issue of delay under clause 30 was dealt with through other amendments, the cap on validity could be removed by deleting clause 32(b) and clause 32(c).
The second major flaw in the bill is the accessibility criteria and definition of a claim. The proposed legislation narrows the definition of which claims are to be considered from the one currently in place in the federal policy. It excludes obligation arising under treaties or agreements that do not deal with land and assets and from unilateral federal undertakings to provide lands or assets.
You cannot have treaty-based claims under this definition. It would exclude them entirely. An example is the Primrose Lake Air Weapons Range. That is land in North-western Saskatchewan that belonged to several Cree and Dene First Nations. Under the current policy, because it is compensation for lost hunting, trapping, fishing and gathering activities that are treaty based, they would not have had a claim. We can point to many examples in Saskatchewan where treaty-based claims would not be a claim; therefore, we would not have the opportunity to bring them forward. Whether it is ammunition and twine or other treaty-based claims, because of the past history of denying them, we could not bring them forward.
Again, JTF, the joint task force report called for retaining the basic definition of a specific claim contained in current policy. The feeling was, let us broaden the definition a little bit to allow for more claims to come in, and in particular, treaty-based claims. The minister presented to you, and he made it clear that the government only intended to make two changes to the JTF report: the imposition of a cap because of fiscal reality; and a change in the appointment process, where we would submit names, he would or would not accept those names and then go to Governor in Council.
In our opinion, in terms of a definition, he must have inadvertently narrowed the definition of a specific claim. We feel the easiest way to address all the difficulties related to the definition of a claim would be to delete clause 26 entirely and replace it with section 10(1) of the joint task force report. In my presentation, which I believe you have, it would be in Appendix A.
Delay — I am sure you have heard much of this over the past couple of weeks. Delay in dealing with claims in the present system is a big problem. It explains much of the current backlog. At present, a First Nation can at least argue before the ICC. The delay by the federal government in responding to a claim counts as constructive denial. Therefore, they should have a public inquiry into it.
The Peepeekisis, one of our larger First Nations in the south, have had to wait 17 years for a response from Ottawa, before the threat of an ICC inquiry finally moved Canada to reject the validity of the claim. Now they are before the ICC.
That is the current system. The proposed bill authorizes, in our opinion, the federal government for delay. The longer the federal government delays in six-month instalments, the less the First Nation can have. If you have a cap of $7 million, and you include legal costs and interest earned from the beginning of the process — or once you validate a claim, there is interest from that date — both of these things currently do not count against the award. In the bill, they will be included as part of the award.
Therefore, if you delay the settlement of it for five or 10 years, then you are looking at less and less. You may have a claim, in fact, that is $10 or $12 million, and because you want it through the system quicker, you will accept $7 million. You will take maybe a year of legal costs and consultants and researching and you are accepting $7 million for a claim that might have been worth $12 million. You do it because you do not want to spend a lot of time in the system.
As you see, the federal government is rewarded for delaying. That is not the case in the present system. If they delay for 15 years, once it is validated, the federal government will have to pay more with interest. I will leave some of the amendments that are in the bill for time's sake.
Independence — you have heard much about it. We agree. The original intent of the JTF was to have an arm's- length body for this commission and tribunal. It would work that way; then the federal government is not appointing everyone. It is such a short time frame for a commission — three years — and then look at it after. We will justify our jobs by settling as many small ones as quickly as we can, whether it is a tribunal or the commission validating.
The appointment process being followed by the federal government presently will ensure — I do not want to take away anything from possible appointments, there are very good people on ICC — but if you will truly appear and be independent, you have to be an arm's length away. Let us jointly submit names — not just, okay, we will listen to you but we are the final arbiters of who will sit on the commission. Let us both jointly put names forward to the Governor in Council. On the minister's recommendation, they will accept it. If we do not have a part in the process, it is very difficult to see how this is truly independent.
We have many other issues, but I will say in conclusion that it is in the interest of the First Nations, the federal government, the Canadian public and private interests to have a process that is effective, fair and expeditious. There is certainty in this country when claims are settled, whether it is a claim to the forests, whether it is a claim to minerals, whether it is a claim to water.
Bill C-6 will not meet these goals. There is too much power left with Canada. They are the judge and arbiters again. The JTF was never about that; it was about working together. We want to work with you on amending this bill. We want to work with the federal government in dealing with specific claims expeditiously, because the longer we wait, the more it will cost. There is a lot of uncertainty in B.C. There is a lot of uncertainty in Saskatchewan's north about who actually owns the land and the resources. We want to say to our public — both the First Nation and the federal government — that yes, we have settled. There is certainty in the North.
I think that this bill can be saved if you are prepared to suggest to the House of Commons a number of amendments — and they are not big amendments. They are very simple amendments. You are deleting some portions, adding words to others and taking words out of some clauses. We think and hope this can work because it will benefit all of us.
Grand Chief McCormick, Association of Iroquois and Allied Indians: Madam Chairman, honourable senators, I would like to say it is nice to see someone in the chair who has had the experience and opportunity to speak to our elders. I would also like to apologize to any senators that may be French-speaking that we do not have a copy of our presentation in French. We just do not have the resources to do that.
I have with me Carol Nadjiwon, a researcher from Batchewana First Nation, which is one of the members of our association, and she is also on our research advisory team for the association.
Carol is someone who has gone out and gotten a good education and has come home to her community to help us with our deliberations in seeing that our rights are recognized.
The Association of Iroquois and Allied Indians was established in 1969. Founding First Nations objected to the 1969 White Paper and Canada not fulfilling its fiduciary and lawful obligations to First Nations. In the early days and today, the resolution of claims remains the priority of the association. Our membership includes the following eight First Nations: Mohawks of the Bay of Quinte, Hiawatha First Nation, Mississaugas of the New Credit, Oneida First Nation, Delaware Nation, Caldwell First Nation, Batchewana First Nation and Wahta Mohawks.
The first five First Nations are located in Southern Ontario, and Wahta and Batchewana are in central Ontario. We have pre-Confederation claims and there are a total of 50 claims currently being worked on by our member First Nations.
The Association of Iroquois and Allied Indians reminds the Government of Canada to recognize our First Nations in a nation-to-nation relationship as established by the Two-Row Wampum and other treaties. This is the foundation of Canada and is the legal obligation of the Government of Canada. If there were no treaties, there would be no Canada. Treaties are fundamental to our relationship and the establishment of Canada. One side has prospered because of the treaties and one side has not.
British promises were made to First Nations as allies during the Revolutionary War of 1775-83 and the War of 1812. We ask Canada to honour the Two-Row Wampum Belt treaty. It was an agreement of friendship and peace that allowed for peaceful co-existence and settlement of this land.
Canada has treated First Nations and Quebec in a contradictory way. When Quebec was defeated it was given self- government and a partnership in Confederation. In comparison, First Nations, who were allies of the British and helped form Canada, have not been recognized as nations.
Our Elders tell us that the blood of our fallen people has made this land red. Our people fought and died as allies to found this country; villages and families were destroyed. Our First Nations have never relinquished the sovereignty that flows from the Creator, the relationship with mother earth and the right of self-determination.
Member First Nations of the Association of Iroquois and Allied Indians requests the Senate to withdraw the proposed Specific Claims Resolution Act. Canada has not upheld its fiduciary and lawful obligations, has not acted in our best interest, and has not upheld the honour of the Crown, and therefore, we request that the proposed legislation be withdrawn.
Since Canada has taken unilateral undertakings, Canada must meet high standards and be free from a conflict of interest. The proposed legislation does not not remove Canada from a conflict of interest as the following proposed clause's demonstrates.
Clause 26(1), addresses types of claims based on breach or denial of treaty. Obligations are omitted to ensure, for example, access to resources and harvesting rights, or the provision of services such as health. These problems do not change and the proposed legislation specifically excludes several types of claims, including claims relating to health services.
Clause 30(4) illustrates that the federal government is still judge and jury. In this proposed clause the minister can decide to negotiate a specific claim and no matter how long the minister takes on a decision to negotiate, no amount of delay can be used to reach the conclusion that the minister has decided not to negotiate. In effect, this puts the old question of validity back in the minister's lap and it can repose there for a long time. A system that is not timely is worthless.
Clause 56(1)(a) says that if and when the minister refuses to negotiate a claim, the commission initiates dispute resolution on the issue of validity. The claimant can request that the validity be referred to the tribunal, but that will only happen if the commission is satisfied that, first, all appropriate information is before the minister; second, all appropriate dispute resolution processes have been exhausted; and third, the claimant waives any claim for damages in excess of $7 million.
We know of no other Canadian tribunal in Canada that has an existing cap. This is not acceptable. Who will define that all appropriate dispute resolution processes have been exhausted? How will they come to this decision? To appeal to the tribunal, a First Nation must waive any claim for damages in excess of $7 million. This is not justice and it is contrary to the present process and what was contained in the joint task force report.
In 1990, pre-Confederation claims were included in the current claims process; this proposed legislation does not not address these claims.
Clause 35(1) says that the existing process makes no definite provision for First Nations to get back land that they have lost. It must be a world record that First Nation's total land mass of all the reserves adds up to zero per cent of the land base in Canada. We do not agree that settlement must be made with money and not land.
Clause 24 of the proposed legislation says that the commission has unilateral authority to implement its functions. It can establish an allotment of funds for research, research criteria, or to arrange for research. There is not a mechanism in place to consult with First Nations on past and current issues of research funding to address long-standing research issues.
With respect to improper consultation, AIAI First Nations have maintained that a just and fair system is required to resolve injustices committed by the Crown/Canada upon First Nations. The 1982 Native Claims Policy, specific claims policy was not accepted because the federal government could not eliminate its conflict of interest that Canada was the accused, judge, jury and controller of funding. This proposed legislation is worse, because it legislates a policy that has ignored the critical work of the joint task force for a just and fair system.
This proposed legislation has been unilaterally developed by Indian Affairs, and we have not been consulted on new ideas and issues. Therefore, it does not not reflect the work of the joint task force. The joint task force was established to improve relations between Canada and First Nations.
The federal government's unilateral action sends First Nations and other Canadians the message that the federal government does not not want to improve relations with First Nations, nor does not it want to eliminate Canada's conflict of interest in resolving issues with First Nations.
Indian Affairs did not consult with First Nations on the proposed bill to establish an independent claims body. Moreover, the legislative process has not gone out to First Nations to hear from the people.
Canada has not upheld its legal obligations to First Nations. Legal obligations and liabilities are not subject to Canada's political party system, social policy or public opinion.
At an AIAI sponsored information session in January 2002, Edward John, who was hired by Minister Nault, provided information on a proposed independent claims body. First Nations expressed critical concern and rejected many proposals including the $7 million cap. This is a conflict of interest and no chief can sign that waiver in the best interests of his people.
Indian Affairs did not acknowledge the information session. In 2002, several letters and council resolutions that called for the elimination of Canada's conflict of interest were submitted to the Prime Minister and to the Minister of Indian Affairs and Northern Development. In order to ensure that the new independent body would be truly independent, it was requested that the Assembly of First Nations participate in the legislative process. However, the federal government did not respond but continued to take unilateral action. Indeed, First Nations were told that consultation would take place in Canada's legislative process. Some First Nations requested the opportunity to make a presentation to the standing committee but they were denied that opportunity; other requests were not acknowledged, and some witnesses were subject to time restrictions.
Clause 4 of Part 1 states that Bill C-6 is established to implement the specific claims policy of the federal government. We reject Bill C-6 on these grounds: The federal government has developed the native claims policy, specific claims policy, and processes unilaterally. The policy, developed by the federal government in 1982, has not kept pace with court decisions on Aboriginal and treaty rights. First Nations have objected to the division of claims into comprehensive and specific claims.
For many years, First Nations called for an independent claims body to eliminate Canada's conflict of interest. Canada determines the validity of claims against itself and controls funding for compensation, negotiations and research.
The red book and the 1997 ``Gathering Strength, Canada's Aboriginal Action Plan'' response to the Report of the Royal Commission on Aboriginal Peoples included government decisions to set a new course in its Aboriginal policies. One of the objectives of the plan included the affirmation of treaty relationships and the negotiation of fair resolutions concerning land claims. The action plan was designed as a framework for new partnerships. However, we have not seen a consultation policy for a joint process to identify an agenda and an implementation plan.
The Senate must uphold Canada's honour and democratic principles and has no choice but to withdraw Bill C-6 in respect of the specific claims resolution act. Member First Nations of the Association of Iroquois and Allied Indians encourages the Senate to act in an honourable way and reaffirm Canada's goal to build a new relationship with First Nations that is based on mutual respect and trust.
The Chairman: Welcome, Chief Hyslop, please proceed.
Chief Joe Hyslop, Executive Council Member, Manitoba Keewatinowi Okimakanak Inc.: Good morning chiefs and honourable senators. I speak from the heart as well. I will try to touch on a couple of issues in my presentation.
The combined traditional territory of the MKO First Nations covers almost three-quarters of the lands and waters of the Province of Manitoba. Manitoba Keewatinowi Okimakanak Inc., represents over 60,000 treaty First Nations people who are members of the 30 northern-most Manitoba First Nations. MKO opposes Bill C-6 and I will tell you why.
Prior to the tabling of Bill C-6 by the Minister of Indian Affairs and Northern Development on October 9, 2002, the First Nations of Canada and the Government of Canada had expressed an interest in establishing a dispute resolution process to resolve existing and future First Nations claims against Canada. First Nations and Canada had previously agreed, as recommended by several committees, inquiries and Royal commissions, that such a dispute and claims resolution process must be jointly arrived at through the mutual consent of the First Nations and of Canada; must be independent of perceived or actual influence by the Government of Canada, and must be effective in resolving claims. The Manitoba Keewatinowi Okimakanak Incorporated continues to be supportive of the objectives to establish an independent claims body.
It is with regret that MKO must advise this committee that the mechanism proposed under Bill C-6 will not be joint, independent or effective.
The MKO First Nations entered into treaties described and known as Treaty Number Four, 1874, the Qu'Appelle Treaty; Treaty Number Five, 1875-1910, the Winnipeg Treaty; Treaty Number Six, 1876, the Treaties at Fort Carlton and Pitt; and Treaty Number Ten, 1906-1908.
Our forefathers, as representatives of our sovereign nations, entered into treaty negotiations with Her Majesty the Queen based on the recognition of our status as sovereign nations and as holders of Aboriginal title to our ancestral lands. We agreed to negotiate upon the express undertaking that we would jointly ``deliberate upon certain matters of interest to her Most Gracious Majesty, of the one part, and (our forefathers) on the other.'' We proceeded with the treaty negotiations based on the further recognition by Her Majesty that it was necessary to ``obtain the consent'' of our forefathers in order to ``open up `` our lands ``for settlement, immigration and trade'' by Her Majesty and ``other subjects.''
Today, the MKO organization is represented by a depiction of the treaty medal provided by Her Majesty's treaty commissioners as a symbol of the sacred relationship that persists between our nations and Her Majesty. The treaty medal clearly depicts a treaty commissioner entering onto First Nation lands, as a guest, to negotiate and enter into treaty, to meet and make an agreement with the leadership of the government within the homelands of each First Nation. The treaty medal represents our joint commitment to nation-building with the objectives of sharing, peace and goodwill, and a relationship founded on principles of mutual faith, recognition, honour and respect.
Her Majesty sought the consent of our forefathers to share our ancestral lands and resources with settlers. It remains that our consent is required before changes to the terms of our treaties will be accepted by our nations or by our people. Mutual consent is the binding principle of treaties.
A modern-day treaty is highly detailed and supported by legal opinion. The intent of the arrangement as expressed through the text of the modern treaty document has all the ``I's'' dotted and the ``T's'' crossed, together with several schedules, appendices and maps.
The original treaties were entered into on a basis of good faith between peoples who spoke different languages and came from different cultures and societies. The original treaties established a commitment to build a nation together and to share the land that would be used by the settlers entering our homelands.
The treaties of the late 1800s and early 1900s created a high duty of honour for both parties. Our treaties reflect the solemn commitment and faith of First Nations to jointly enter into nation building with Her Majesty's government ``for as long as the sun shines, the grass grows and the rivers flow.'' This commitment incorporates the obligation to renew, develop and evolve our nation-to-nation relationship.
Our joint commitment to nation building is not frozen at one moment in history, but must be understood in its contemporary form as events take place and our respective nations grow. Bill C-6 violates the treaty relationship, our joint commitment to nation building and the honour of the Crown.
The MKO First Nations cannot, and will not, accept that Her Majesty, or the Government of Canada has, or ever had, the capacity to unilaterally alter or terminate our sacred relationship through subsequent domestic, legislative and constitutional enactments. Our treaties were entered into between sovereign nations and can only be modified or affected by the joint consent of the treaty signatories.
It is the position of the MKO First Nations that our treaties were entered between sovereign nations. As such, our treaties are not governed according to the domestic laws of the Her Majesty's realm but in accordance with the international law on treaties.
In order for our treaty relationship and joint commitment to nation building to evolve to contemporary terms, it is essential that the Crown implement its commitments with integrity and honour. As part of these commitments, it is also essential that a joint, independent and effective mechanism be established to find results relating to the terms and promises of a treaty. This kind of mechanism must be established and operate in accordance with the process, spirit and intent of the original treaty negotiations on which the joint task force process can be considered a contemporary reflection.
MKO calls upon senators to act as the present representatives of Her Majesty to uphold the honour of the Crown. MKO suggests that a simple test or measurement be applied by this committee in its examination of Bill C-6.
Does not the claim resolution proposed in Bill C-6 reflect all the aspects that were recommended by the independent claims body and jointly negotiated and agreed upon by the joint task force? The MKO First Nations states that Bill C- 6 failed this basic test and should be amended or rejected.
With respect to Bill C-6 and the proposed establishment of an independent claims body, the MKO notes that Bill C- 6 affects the treaty relationship and honour of the Crown as well as treaty and Aboriginal rights of First Nations. This committee should ensure that all First Nations and First Nations organizations that desire to appear before this committee are afforded the opportunity to do so.
This committee should recommend that the Senate of Canada and the government support the intended objectives of the process initiated in 1997 through the First Nations-Canada Joint Task Force on Specific Claims Reform, JTF. This committee should recognize the process of contemporary reflections of the process, spirit and intent of the treaty relationship.
This commission reported and recommended that the Senate of Canada and the government support the establishment of the independent claims body that would result from the implementation of recommendations of the November 1998 ``Proposed Final Draft of Legislative Drafting Instructions for an Independent Claims Body.''
The report of this committee should recommend that amendments necessary to Bill C-6 be made to ensure that any independent claims body that might be established pursuant to specific claims resolutions be in accordance with the 1998 JTF ``Proposed Final Draft of Legislative Drafting Instructions for an Independent Claims Body.''
In the event that the Minister of Indian Affairs and Northern Development, the Prime Minister and the government are unwilling to adopt the recommendations submitted by this committee, the committee should further recommend that government withdraw Bill C-6 and re-establish the JTF process in order to consider a negotiated agreement upon various revisions as proposed in the November 25, 1998 JTF agreement on the ``Proposed Final Draft of Legislative Drafting Instructions for an Independent Claims Body.''
Our elders have interpreted this proposed legislation. They are of the belief that we share the lands and resources with the immigrants with whom we signed the treaties, Her Majesty and her subjects.
I come from Treaty 10, which was signed in 1906. However, as time has gone by, we have come to be regarded as second-class people, whereas we should be regarded as nations, a government that has a treaty with Canada. Our treaties should be respected.
Since the time of the treaty signing Canada has not lived up to its fiduciary duties and that is the reason why we are sitting here today. From the early 1800s to the year 2003, the work has not been done.
I respectfully suggest that honourable senators try to persuade the government to do the fiduciary work but do it at a bilateral level. We must have nation-to-nation negotiations, we are a nation, and will keep saying that we are a nation.
MKO First Nations do not agree with the proposed bill. We have the justifications to take it as far as we can. We have to make Canada understand it has the fiduciary obligation to sit and negotiate with us. Those were the terms that were understood by our forefathers. That is the reason why JTF was very important: It was done by both parties sitting side by side, looking at one another and negotiating how it should be done.
As a Dene member and a chief, I should be allowed to sit across from the Senate and Parliament to negotiate the rights of my people, my territory and my country.
We have to educate the Senate, the government, on where we come from. We have to educate the public. Then, maybe we will be understood. I am at the table negotiating comprehensive claim bodies, which I should not be doing. If Canada had sat down at the very beginning with my forefathers, my grandfathers and my uncles, we would not have to negotiate comprehensive specific claims because we would have had agreements in place where we work nation to nation. However, power does not not make you think the way you want to think.
We were brought up to respect other people's belongings. If I took something off your land or something from your home, something from your yard, you would take me to court. I would have to stand up in court and answer for that. Canada has just done that. It has taken something that does not not belong to it and has not shared with us. We have to look at it that way. Keep an open mind on not the power that we have, but the commitment that the Crown has made to the First Nations of Canada and to the Aboriginal people of Canada. I do not want to say I am an Indian, because I am a Dene. You have to keep that in mind.
We need good faith negotiations between the First Nations people and the Government of Canada so we can have a better process and mutual understanding when we sit at the table, not to impose legislation and policies. We are a government as well. Let us share the riches of this country. Let us settle our land claims, our specific claims and treaty entitlements. We must ask in Parliament why it has taken so long, until this day, to settle with the First Nations of this country.
The Chairman: Before I go to questions, I would like to explain that we have received over 75 requests to make presentations. Time does not not permit it. My clerk and I sat down and chose regions. You represent a large region, Chief Hyslop, as does not Chief Shannacappo and everyone else. We did that so the voices of the people could be heard through you as their elected chiefs. I hope you will understand why we have written to the others and asked for written presentations. You are the voices of the people in all of your areas. That explains why we chose to do it this way. Otherwise, it would go on forever, and we have to make some decisions.
[Translation]
Senator Gill: I would like to thank all the witnesses for their presentations and for the consistency of their testimony which, in fact, is quite exceptional. That does not not surprise me at all. I hear the same message from Quebec First Nations, namely that this bill should be withdrawn or significantly amended. We have the privilege of discussing this bill in the Senate with Aboriginal and non-Aboriginal senators and some of them express the same opinion.
Why is it that after all those years, you have to deliver the same message? It has been more than 400 years that some people put up with these things, not only Aboriginal but non-Aboriginal peoples. Il does not seem possible to establish relationships between Aboriginals and Non-Aboriginals, between First Nations and others. They cannot manage to build this country so that their actions are perceived as positive.
How come that throughout the country, one cannot convey the message that First Nations know this country and can bring a contribution? To do so in a meaningful way, First Nations must participate in the legislative process, in the law-making process. People are willing to help them in Parliament Hill, but have not managed so far to do so.
There is that $7-million limit. I always thought that specific claims involved a process whereby rights denied in the past could be recognized and reinstated. But at the same time, one has to take this fiscal reality into consideration.
Right now, I have the feeling that the government is worried about claims that would be too high and which could bankrupt the country. These two things should be treated separately. The claims is made, the right is then established, the settlement that is negotiated will not necessarily generate money right way. It can be phased in according to negotiations. What do you think?
[English]
Ms. Carol Nadjiwon, Researcher, Association of Iroquois and Allied Indians: I would like to respond. As mentioned, I am from the Batchewana First Nation, which was signatory to the pre-Confederation 1850 Robinson-Huron treaty.
The question that you raised is one that we have all been wondering about: Why does not Canada not listen to First Nations people?
In keeping with our history our ancestors made petitions to newcomers, Europeans to this country. It was our Elders who approached the Governor General and other colonists to establish justice for First Nations people. The result was our historic treaty.
We also have a history where our ancestors served as allies with the British against the U.S. in the Revolutionary War, as well as in the War of 1812. Our Elders tell us these things.
The Batchewana First Nation is situated at Sault Ste. Marie, Ontario. That is our ancient land. Across the river, is Sault Ste. Marie, Michigan, where our relatives have a much different relationship with their government. In the U.S., First Nation fishermen can go ahead and fish; the American Chippewa Indians can fish based on their tribal sovereignty and their right to commercial fishing. Here in Canada, people do not want to hear that we, too, have sovereign rights and that we have our economic rights. Our sovereign rights are seen as minority rights because we are disadvantaged people. Canada has failed to honour our treaties.
We recognize that Canadians do not know understand our early history. Canadians do not know that before 1850 our people were planning to become involved in mining and timber development. With the coming of the Europeans our plans were bypassed by the economic interest of the settlers who became the motivating force behind the development of this country. The whole issue of history and relationships is something that needs to be addressed so we understand each other. We have ancient ties to this land. We are not a transient population.
We do not agree with the cap. We have felt the impact of different policies and the disregard for the rights of our people.
The Chairman: Mr. Anderson, do you want to respond to Senator Gill?
Mr. Michael Anderson, Research Director, Manitoba Keewatinowi Okimakanak Inc.: Honourable senators, it is always an honour to be on Parliament Hill before members of the Senate.
In terms of the first part of the question, as to why we are still working on these things after 400 years, I was struck by two comments. In the first, senior legal counsel, for the Department of Indian and Northern Affairs Canada commented on the joint task force:
It was a productive experience and one of the key features in that, in the end, the recommendations were all negotiated and agreed upon.
However, when there was a request to characterize the expectations of that result Mr. Binda responded:
When the JTF people were at the table-the First Nations and Canada-it was never thought that what they produced would be created.
We found that a most extraordinary statement.
Clearly, the object was to enter into the process in good faith. As Chief Hyslop mentioned, it is not lightly that Manitoba Keewatinowi Okimakanak, MKO, makes the comment that we see the joint task force process as a contemporary reflection of the spirit and intent of the treaty negotiations themselves. The national efforts to maintain political support from First Nations for the JTF process involved a tremendous amount of effort by chiefs, grand chief, leaders, community members and technicians. It is worthy of being supported and it is worthy of our trust and faith in Canada, based on the minister's commitment that the legislation would be jointly drafted.
To find a senior departmental official here before honourable senators saying, no one thought it would be actually turned into a law, is simply extraordinary. It is that type of response, where a commitment is made by the Crown in honour and good faith and it is changed or the attitude is, well, we will not meet that commitment. There is no accountability for this kind of attitude being pervasive within the government. The government is not held accountable for changing its commitments midstream.
It is with great weight, as the chair has explained in terms of representativeness by the selected group that is before you, that the Commons has set aside the JTF report. The minister has set aside the JTF report; the Commons committee has set it aside in terms of recommendations; and the House itself has forwarded it to you without amendment. It falls upon you, honourable senators, to uphold the honour of the Crown and to give life to the original treaty commitments.
It is the lack of accountability, and it is the ability of thinking like this — the ability for departments to accept changes to ministerial commitments — that leads us before you today.
On the second aspect, in terms of the cost ceiling, you have heard ample testimony from numerous parties concerning the affect the ceiling will have on our people. MKO agrees. The commentary I noted in the department's comments before you on May 6 is that there was a compromise on the financial framework that was arrived at by the JTF; and that was to establish a five-year settlement amount. Under the JTF we agreed to enter into the process in good faith and see what happens. That is a different form of cap in a way, but it was jointly agreed to. However, it left the process open-ended enough to investigate what types of settlement amounts would be relevant in a contemporary context with this new framework.
Looking at the historical evidence of the settlement of claims, I notice that there are questions concerning the past record of the claim amounts, and that the 74th percentile is at $7 million. However, those claims were established under the existing or previous mechanism, where the government is in tremendous control of all aspects of the claim process in respect to actual compensation awards. Translated, it means that the government has already had a substantial influence on keeping the amounts of those awards low.
The combination of events, with the Indian Claims Commission providing moral suasion at least in terms of reinvestigating claims — for example, the ones that AFN mentioned recently in Saskatchewan and other similar claims — indicate that, set aside with this cap removed, the claims may in fact rise.
The JTF had confirmed non-monetary means of not being before these bodies. It does not remain, however, that in providing mechanisms to share the wealth through various forms of equity to resolve the end result of non- implementation of claims, there are other mechanisms other than cash that can go a long way to doing that: Resource access negotiations, benefit sharing agreements for major developments that Canada does not require in any area under its direct jurisdiction north of 60 or on the offshore, and so forth.
There are other mechanisms for providing equity to honour the treaty relationship that we have taken at the direction of the executive council. We have done this to ensure that we presented honourable senators with a colour image of the treaty model to indicate this relationship. The glue that holds the handshake together is honour and respect on the part of both parties and the mechanism to make this relationship work has other options.
However, in respect of the claims environment and fiscal accountability, a compromise has been made that seems to go a long way to answer the requirements of Parliament to ensure that dollars expended have value for Canadians. The compromise also deals with the requirements of the Treasury Board for ensuring that dollar amounts that are being authorized have some recognizable authority attached to them.
Once again, we turn back to the JTF recommendations, including the fiscal framework.
Mr. McCormick: We keep ending up in the same place, honourable senators, because we had a commitment that we would enter into a joint process. Then the government turned its back on us and did not implement what the joint task force brought forward. The Government of Canada broke its word.
It is a conflict of interest for Canada to say that it is not going to look at claims that are over $7 million. Specific claims represent outstanding legal liabilities until they are compensated for or settled.
I agree that we do not want to break the country. However, we want our rights recognized, just like non-native peoples. If this had happened to a non-native person regarding their personal land, there would be quick action by the government to see that justice prevailed. That would be based on individual negotiations. There could be a repayment plan.
Mr. Ahenakew: Senator Gill, in response to your question it is very clear why we keep ending up where we are. First, there is the Indian Act that controls our life. Second, we do not often vote. In most regions of the country we do not have sufficient numbers to influence the outcome of an election. Third, we have no real economic power. That is why we keep ending up where we are. If we were a multi-billion dollar corporation, the government would listen. It is unfortunate that we are not a wealthy corporation, but we are trying to get there and I hope one day that we will.
We agree with Mr. Anderson with regards to the fiscal question. The JTF was equipped with a mechanism to allow for fiscal responsibilities. It is not in our best interest to try to bankrupt Canada.
However, we must have access. There cannot be a cap on validity. All claims must be treated equally in this system. It is neither in the interest of Canada, the province, the general public nor First Nations to go to court. Sometimes they will reward us very well and other times perhaps not. In court, it is often a toss-up; you throw it in and the court decides.
Considering the costs associated with litigation, we cannot go there. Let us work together and come up with a bill that responds to all of our concerns.
Senator Watt: Your presentation is pretty consistent with what other people have said concerning this proposed legislation.
At what point did the Government of Canada feel that the onus was on them to set the ceiling? I am talking about the ceiling of $7 million.
In regard to the appointment, as you know, in the system, there are procedures that you must follow when you make an appointment. When you put the joint task force together, you came to the conclusion, I believe, that you would have an opportunity to move in the direction of creating a balance between First Nations and the Government of Canada.
I believe what you are asking for is only to say that, ``Well, when we signed the treaty, we signed the treaty on the basis that we would work together, and live together and make decisions together.'' Therefore, I understand that this is where you are coming from.
In connection with the subject of conflicts, the minister who administers the Indian Act basically runs your day-to- day life. You also mentioned the fact that the intent was described, as an example, as two canoes going down the river side by side. That has been well expressed by a number of people over the years.
Looking back at day one and where we are today, would you consider saying that they are finished with us as an Aboriginal people? We have done our part, but now they are fully knowledgeable about this country, have all the powers and necessary financing that they need, the economic base and whatnot, and the Aboriginal people have nothing left. In a sense, this was not, I would say, done in good faith, if you want to put it in that fashion.
Therefore, would you consider this to be deliberate on the part of the people that run the system? Do they want Canada to end up that way? For example, there would be no variation in terms of what the law should be, and the law should apply to everyone equally. I am saying this now because I have seen just that over the years. There is no room for us in this place. You have come to this committee as the place of last resort for your cause because senators have a constitutional responsibility. Our Constitution is clearly spelled out and our job is to represent the regions that are not fairly represented by members of the House of Commons. Our job is to represent the minority people that are not represented fairly by the other place in Parliament. Our job is to represent the native people.
You have come before us to ask us to do the right thing because this proposed legislation does not not give you anything and, in a sense, takes something away from you. You are asking us to do what we can to help stop this bill. I think this is what I hear from you. Am I correct in my understanding?
Mr. Shannacappo: I greet all of you once again. The other day I asked God, ``Am I a minority Creator?'' He did not answer me. I hope that all of you ask that same question one day in your lives.
In my life, I have taken the teachings of my people and have gone forth to spend four days in the bush alone with my Creator. We were put here, on this side, to look after the land for our grandchildren. I ask my people to not look at themselves, at the work they have done for today and at all the richness they have in their own homes for themselves. All the work that they do today must be attributed and connected to their grandchildren, to the seven generations that we must care for. I ask my people not to take a stand because they believe in what I talk about. When you believe in what I talk about, then you believe in the words of your elders. I am speaking the words of the elders; these are not my words. I make it my responsibility to gather and collect the words of the elders and I ask our people, who are being called minorities in their own country, what they want to bring forth.
It has been brought to my attention that there is a reminder of our rightful place in legislation on your 20-dollar bill. However, as Senator Watt said, there seems to be no room for us. You can only be a part of a house if you are allowed to contribute to that house. What will you contribute? You will contribute your time, efforts and a great part of your heart to make that home warm for the family. If you do not contribute, you will be shut out. In that house, if you want to make a plan but you are not contributing, then your plan will be shut out.
Any part in the making of legislation in this house will only be contributive if the other players agree to provide a place at the table for all who wish to contribute and to allow them a speaking voice on the issues. We are being treated like children that should not be heard.
My people say go forth and remind them of the fire in the mid-1800s, and of the treaty that was signed in 1874; remind them that we are in the heart of Treaty Number 2 territory where traditional lifestyle was negotiated and agreed upon. There was a large tract of land, called the Riding Mountain Forest Reserve, where our people were to express and live their traditional lifestyle, to live in harmony with nature, to live in harmony in accordance with the ``Garden of Eden'' that they were afforded. Natural law took place, where no one tried to rise above another; no one tried to be more assertive or more connected; and no one tried to overshadow another with wealth from this land.
Today, that is how we are regarded — as set in a corner, put aside and told that we are non-contributors. However, when you have been given little freedom, except that which comes with the giving of money to buy food — the bare minimum — then you become dependent on that payment from Canada.
Our people started to look at that payment as a right but I am trying to turn that around and I am telling them that welfare is not their right. Rather, their right is to go back into the bush and harvest and pick what is rightfully theirs — what the Creator laid down here for them — our medicines.
Within that territory, when we had that right, the country decided that it could no longer afford that and wondered how to take it away. With legislation, they imposed a federal park for which our people had to pay five dollars, which is equivalent to their treaty money that they receive from the government, to enter the park each season to enjoy the wildlife — not to harvest, not to pick, not to help or educate their people, but only to say that at one time, they roamed freely in that park.
The Chairman: We have about five minutes and two more senators with questions.
Mr. Shannacappo: Please check your 20-dollar bill to see where my people should be sitting to help create legislation for this country.
Senator Tkachuk: Welcome chiefs and gentlemen. I have been on the Aboriginal committee off and on for 10 years. I took an interest in it mostly through curiosity but also because of the impact that treaties have on the Province of Saskatchewan. After 10 years, perhaps this bill may provide me with the opportunity to earn a masters degree.
I disagree with the chair in that I would like to hear all the witnesses; I do not see that we have to rush. There are 75 people who want to come before us and if it takes us a year, does not it matter? We have been sitting here for a couple of hundred years so what is one year if we can do it right? There is no rush, as far as I am concerned, to push the proposed legislation through until we have as much information as possible. I simply wanted to make that point.
I have one or two questions. The issue of independence always intrigues me. When we talk about finding a dispute resolution process and about the members being independent and not representing only the Government of Canada, I am perplexed. The Government of Canada is supposed to represent all Canadians, which is, of course, not only me but also you, all of us.
Then, of course, we have, for want of a better word, ``the plaintiff'' or the other part of the arrangements. Mr. Ahenakew, when you want someone appointed, when you bring people to the table, do they not favour your point of view? Of course, the Canadian government has people that favour its point of view. No one is impartial in this process. How do we maintain some independence in all of this? Is it an impossible task? Perhaps we should appoint people to represent us, you should appoint people to represent you and then we could fight it out in a corner. There truly is no independent commission, is there?
Mr. Ahenakew: We will answer your question from two points of view, Senator Tkachuk. Mr. Benson, who has had much experience with the joint task force, will also respond.
Take a tribunal, for example. You do have a valid point. Is it really independent? Canada can appoint a tribunal such as it did for the Free Trade Agreement. Canada appointed a representative, the U.S. appointed one and they agreed on the third. You have a balanced process. While you have people in your favour, the third person on the tribunal is impartial, if you can agree upon that person.
Therefore, we see the commission appointment process similar to that process. There should be a balance. Our job is to identify the process that will allow for the most fair tribunal and commission.
Mr. Jayme Benson, Federation of Saskatchewan Indian Nations: Vice Chief Ahenakew answered the question about the specific parts of the proposed legislation that deal with appointment and the JTF. It not ought to be one side or the other. There should be some mechanism so that there will be neutral people or both sides choose one and those sides ultimately choose a third person.
It is important when we are looking at the issue of independence not to look only at the appointment process. When Vice Chief Ahenakew was giving our presentation, he raised several of our concerns and an example is the issue of delay. In our presentation we noted that the JTF was about moving control out of the federal government into an independent body. When Bill C-6 went through the bureaucracy, that independence was moved back into the federal government with DIAND and the Department of Justice.
The amendments we are proposing in the four areas, although there are other concerns, are attempts to move some of that independence out. In delay, instead of the federal government having the entire control over the process, we propose options.
One option is to set ultimate time frames so that at some point someone can say, ``enough is enough'' and move to the next stage. Another option is to give more control to the commission to make those types of decisions. That addresses independence.
The definition of a claim should encompass as many claims as possible, not exclude claims. That would help keep claims out of the courts. It is something that could be dealt with through an independent body and not controlled by the federal government.
If you are looking at the issue of independence, you must look further than just the appointment process. There are fundamental flaws that move that control back to Canada.
That is why we propose the specific amendments that we do. They are in our presentation so we will not go through them. It is about control.
The Chairman: As much as we would like to continue, another meeting will start soon in this room. I must apologize.
Mr. Benson answered well.
I would like to respond to Senator Tkachuk. It has taken us many years, beginning with the old Indian Brotherhood, to create a system within the Aboriginal peoples where we have grand chiefs and representatives elected by the regions. It is very important that we recognize that protocol.
We are not hearing 75 presentations. Those presentations are being heard through the grand chiefs, you and all of your representatives here. I will always recognize the protocol down the grand chiefs straight through.
We cannot keep this proposed legislation in limbo for over a year. I have been involved in treaty negotiations. They have been stalemated for many years, some for almost 100 years. It is time we worked together so that we can move forward, both the third order of government and the federal government.
We cannot let it lie. It has to be done so that you can get your work done and you can negotiate in good faith. I would like to thank each of you for your presentations. Everything will be taken into consideration. You will be hearing from us again.
Senator Tkachuk: Madam Chair, that means that we will not a discussion now as to how we will handle it? Have you already made that decision?
The Chairman: We are to meet in camera.
Senator Tkachuk: You already made your position clear. What is the point of having the discussion?
The Chairman: We will discuss this.
Senator Tkachuk: You brought up your point of view.
The Chairman: I have responded.
Thank you, gentlemen, it has been a pleasure. We will have an in camera session.
Mr. Anderson: Would it be appropriate to inquire if our submission is accepted as testimony before the committee?
The Chairman: Your submissions have been tabled, and they will be taken into consideration.
Mr. Anderson: We are in the process of having our submission translated into French. We will submit that to the committee as soon as it is finished. Our member of Parliament is kindly assisting us with the translation.
The Chairman: I adjourn this part of the meeting, and we will continue in camera.
The committee continued in camera.