Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 16 - Evidence of May 28, 2003
OTTAWA, Wednesday, May 28, 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 6:30 p.m. to give consideration to the bill.
Senator Thelma Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Welcome to the Aboriginal Room of the Senate. Tonight we are addressing Bill C-6, which is an act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims, and to make related amendments to other acts.
I would like to welcome the witnesses from the Atlantic Policy Congress of First Nation Chiefs. Please proceed.
Chief Jean Guy Cimon, Executive Member, Atlantic Policy Congress of First Nation Chiefs: Honourable senators, on behalf of the Atlantic Policy Congress of First Nation Chiefs Secretariat I would like to say that we are pleased to have the opportunity to share some of our knowledge, thoughts and concerns about the Specific Claims Resolution Act.
We understand the members of this Senate committee have been given the responsibility to not only hear concerns from the public about this new law, but also to amend the act to address concerns raised with provisions of the act.
It is for this reason that we are participating in this process, not only to share our thoughts and concerns with the Specific Claims Resolution Act but also to offer recommendations to change critical dispositions and provisions of the act we feel will essentially address our concerns.
The Atlantic Policy Congress of First Nation Chiefs Secretariat is a policy research and advocacy organization whose members include 34 of the Mi'Kmaq, Maliseet and Passamaquoddy First Nation chiefs of the four Atlantic Provinces and the Gaspé region of Quebec, including Eastern Maine. The population of the Mi'Kmaq, Maliseet and Passamaquoddy in the Wabanaki territory is approximately 30,000 people. Of the 34 Mi'Kmaq, Maliseet and Passamaquoddy communities, 15 have a population of 500 people or less; 10 communities have a population between 500 and 1,000 people; and nine communities have a population of between 1,000 to 3100 people.
When we presented to the standing committee of the House of Commons on this bill in November 2002, we outlined some crucial figures on the rate of settlement of claims in our region to highlight the inadequacy of the current system. The rate has not changed since then, unfortunately, and still relevant for today's hearing. Since the imposition of the Specific Claims Policy in 1973, Atlantic First Nations have submitted approximately 58 specific claims. Of the 58 specific claims within the system 26 claims are ``under review,'' five are ``under negotiation,'' 27 are classified as ``other,'' and 10 have been settled. Based on preliminary statistics, we understand that approximately 23,000 acres of reserve land were unlawfully undertaken in our region. The current reserve land base left after these illegal undertakings is approximately 34,376.58 hectares.
We are quite distressed with the rate at which claims are being settled in the Atlantic. Of the 58 claims submitted in the Atlantic since 1973, only 10 have been settled. It took 30 years to settle 10 claims. At this rate, the claims in the Atlantic will not be settled for another 150 years, and this is totally unacceptable.
In one instance in the Atlantic, a claim submitted in 1982 over the unlawful taking of 248 acres of land an agreement was finally reached 20 years later in November 2002.
These statistics do not include the potential number of specific claims not yet submitted into the system. According to the Treaty Aboriginal Rights and Research Centre, TARR centre in Nova Scotia, there are potentially 35 more claims ready for submission within Nova Scotia alone, and at least 35 in New Brunswick, as well as others in other provinces.
We provide you with these statistics because it has relevance to the Aboriginal burdens being imposed on our small First Nation communities in particular. We have a huge stake in making sure specific claims are settled in a fair, just and equitable manner. We have the fastest growing population in Canada and a high percentage, 70 per cent, on reserve and, yet our land base is decreasing.
On a more positive note, we have treaties, treaty rights, Aboriginal title and Aboriginal rights, and such are safeguarded by section 35 of the Constitution Act, 1982.
In the spirit of protecting our rights, we wish to note to the committee that the chiefs' submissions to the standing Senate committee is not to be construed as meaningful consultation as justification for infringement of the Aboriginal and treaty rights of Mi'Kmaq, Maliseet and Passamaquoddy Nations.
In 1998, after years of cooperative work, First Nations and Canada, via the Assembly of First Nations, released a joint task force report, which provided a cooperative basis for a truly independent body dealing with specific claims. In fact, the joint task force outlined a jointly appointed commission and tribunal that provided for the effective, fair and expeditious resolution of all claims within a reasonable fiscal framework.
These claims involve legal obligations arising from the past federal dealings with First Nations. A large backlog of more than 500 claims exists. The backlog continues to grow every year, along with the federal government's contingent liabilities. First Nation communities continue to suffer from the ongoing inability to access land and assets that are rightfully theirs. The Government of Canada's Specific Claims Policy is intended to resolve claims arising from breach of the Crown's lawful obligations through negotiation.
Bill C-6, known as the Specific Claims Resolution Act, does not create an independent and impartial body designed to clear up the huge backlog of claims. The conflict of interest in having Canada decide claims against itself remains and it is entrenched in legislation.
It is the view of our chiefs that Canada's Specific Claims Resolution Act does not retain the basic element of the joint task force bill. Today, Canada's Specific Claims Resolution Act would create a system that is worse. At least today, the Indian Claims Commission, ICC, exists and allows all claimants to obtain a public investigation, a report and a non-binding recommendation.
Although there have been several initiatives to set up an independent, effective system to resolve these claims, the most promising one is in the joint task force report of 1998. This was a product of discussion between officials from the Assembly of First Nations and from the federal government. In a spirit of partnership, each side found ways to address the concerns raised by the other. The result of those discussions was the detailed and technically sound bill for a system to resolve specific claims.
This joint task force bill proposed a jointly appointed commission and tribunal that provided for the effective, fair and expeditious resolution of all claims within the reasonable fiscal framework.
Under Bill C-6, the federal government retains its domination over the system. It does not create an independent and impartial body designed to clear up the huge backlog of claims. Instead, the bill enables the government to closely control the pace of settlements and decisions. Access to the tribunal is severely limited, appointments are at the unilateral discretion of the Government of Canada for short terms, and the federal government is rewarded for delaying the settlement of claims. Claims are treated as a matter of discretionary spending that must be tightly controlled, rather than as legal debt or liabilities. The conflict of interest in having Canada decide against itself remains, and is entrenched in the legislation.
In fact, Bill C-6 would create a system that is worse than the current system, which at least allows all claimants to obtain a public investigation, a report and a non-binding recommendation on their claim from the ICC. Bill C-6 does not allow this independent public review for claims above the cap.
The approach of the joint task force was to build on the definition in the official federal policy statement, ``Outstanding Business'', 1982, with a modest expansion in light of case law over the past decades. Bill C-6 narrows the definition of claims compared even to current federal policy. It excludes obligations arising under treaties or agreements that do not deal with land and assets; unilateral federal undertakings to provide lands or assets; and claims based on laws of Canada that were originally United Kingdom statutes or royal proclamations.
Bill C-6 also adds a list of claims that cannot be filed. These include claims less than 15 years old; claims based on land claims agreements entered into from 1974 onwards; claims based on an agreement listed in the schedule to the bill; claims concerning the delivery of funding or programs related to policing, regulatory enforcement, corrections, education, health, child protection or social assistance or similar public programs or services; claims based on an agreement that provides for another mechanism for the resolution of dispute; and claims based on Aboriginal rights or title.
The joint task force placed no limit on the size of individual claims that could be brought to the tribunal. Bill C-6 denies access to all claims over a cap, which is set out at $7 million. The amount can be lowered as well as raised. Our chiefs expect that the clear majority of claims will be worth above the cap. Federal projections to the contrary seem to underestimate the value of claims. Today, the ICC says that of the 120 specific claims with which they have dealt, only three were worth less than $7 million.
The Atlantic Policy Congress of First Nation Chiefs has reviewed the joint task force report of 1998 and believes the model built into the joint task force report of 1998 shows what can and should be done in constructive and positive spirit. The Atlantic Policy Congress of First Nation Chiefs calls on the federal government to return to the substance and spirit of the joint task force report and resolve any remaining issues in the spirit of partnership, fairness and justice.
New legislation needs to be created, which includes a generally independent and effective system to resolve specific claims. We recommend to you here, today, to consider a more constructive approach. It would ensure that Canada's unpaid lawful obligations to First Nations communities are realized. The federal government would live up to its general commitment to fiscal responsibility and debt reduction.
First Nations communities would achieve both justice and the practical means to promote their economic and social development. Non-First Nations businesses would benefit from the increased spending and investments from First Nations. The ongoing source of dispute over the past would be removed, fostering an atmosphere for joint cooperative efforts at building a better future for all First Nations.
The promise of the federal government in the Red Books would be fulfilled, and the government could create a legacy in this area that would benefit First Nations and all Canadians, and serve as a model for the international community in resolving unpaid debt to Aboriginal people.
The Atlantic Policy Congress of First Nation Chiefs would like the federal Government of Canada to seize the opportunity to work together on creating a new bill aimed truly at providing a just, speedy and fair settlement of outstanding federal legal obligations.
The Specific Claims Resolution Act will merely continue the wrong that has been committed for over a century by imposing additional inappropriate systems and regimes on people. Instead, the government should be working with First Nations and concentrating on how to remedy the damage done and support First Nations governmental development.
Was there a meaningful consultation on this bill? The short answer is ``no.''
We encourage this committee to engage in a meaningful discussion and consultation about what really works — in terms of both strategies and priorities — to achieve a mutually positive result, but mostly for the benefits of First Nations people. We do not wish to spend any more time than is necessary in pointing out the flaws in Bill C-6. We would like to move on to our recommendations.
Our primary recommendation is to withdraw the bill. On September 18, 2002, the Atlantic Policy Congress of First Nation Chiefs passed a motion unanimously calling on the federal government to extensively redraft the Specific Claims Resolution Act to secure the joint task force elements of the bill. Our chiefs also challenged the federal government to fulfil its fiduciary obligation to First Nations by withdrawing its Specific Claims Resolution Act in its current form and return to the joint process of drafting as upheld in the joint task force model. Our position is consistent with the position put forward by the Assembly of First Nations and other First Nations groups across Canada.
Our primary recommendation is to withdraw this bill. However, we are also aware the Senate standing committee has an opportunity to make changes to the bill. We would also like to offer some suggestions for changes.
First, we recommend changes be made to Bill C-6 that are consistent with the recommendations agreed upon in the 1998 joint task force report. Otherwise, to move forward with the current bill we know will compromise the ability to resolve claims in an expeditious, fair and impartial manner.
Second, we recommend that the conflict of interest provision within the bill be removed. The independence of the commission and tribunal could be undermined by the retention of unilateral federal authority over appointments and the processing of claims.
Third, we recommend that appointments to the commission and tribunal be made jointly by both the federal government and First Nations. Otherwise, it will be a conflict of interest for the minister charged with defending the Crown to be given sole discretion to make appointments to a body that will be hearing the claims. In the current bill, there is no provision for direct First Nations input.
Fourth, we recommend that effective and specific timelines be provided under the commission process. In the current bill, there are far too many opportunities for federal delay built into the process. This bill has been characterized as ``institutionalizing'' delay.
Fifth, we recommend that the financial cap provision within the existing bill be removed. Bill C-6 appears to be worse than the current process whereby a commission of inquiry is available to all claims that are rejected by the government, regardless of potential monetary value. Under the bill, First Nations will be required to waive federal liability over $7 million to access the tribunal. Even the Minister of Indian Affairs and Northern Development agreed, when he made his submission to this body on May 6, that he wishes that there were more flexibility in relation to the cap because it would make for a stronger tribunal.
Sixth, we recommend that the definition of a specific claim be defined to include claims arising from specific pre- Confederation treaty provisions. Under the current bill, the definition for a specific claim has been narrowed from the existing policy. Claims arising from specific treaty provisions are now to be restricted to land claims and not those relating to our rights or to the water.
Seventh, we recommend that the bill be amended to provide for a substantial long-term financial commitment. Under the current bill, it is more about limiting federal liability than about settling claims. It offers little or no hope to address the growing backlog in specific claims in the foreseeable future.
Eighth, we recommend that the structures and procedures for the proposed bill be more flexible. Under the current bill, structures and procedures are more narrowly prescribed than the flexibility recommended by the joint task force and would be made more inflexible by federal regulations not yet seen but under development.
Ninth, we recommend that provisions be added to the bill that allow for a joint review of the process. Under the current bill, that power is left to the discretion of the minister.
Tenth, we recommend that the current bill be withdrawn and be amended to include the recommendations we have just outlined. Currently, our First Nations do not believe the bill is consistent with the high standards of conduct required of a fiduciary. The federal government currently decides internally whether specific claims are valid. Compensation is determined through negotiations, with a high level of federal control over the rules being applied. The government is, from our perspective, in conflict of interest because it is both the defendant and the adjudicator.
In conclusion, we wish to reiterate a statement made by Minister Nault during these hearings, where he said:
The Specific Claims Resolution Act, like these other initiatives, is about fairness for First Nations people. It is about listening to them and hearing what they say, and about keeping promises and recognizing our responsibilities as legislators and acting on those responsibilities. It is also about building respect among us and trust relationships, so that First Nations can enjoy a quality of life that other Canadians take for granted.
We want to remind committee members that we are here today calling for the withdrawal of this bill precisely because our trust was betrayed by our federal partners who sat with us and co-drafted the joint task force report ended up ignoring it. We hope that through this process, the senate committee members will be able to reinstate and uphold the joint task force report.
We will be pleased to answer any questions you may have.
Senator Stratton: Gentlemen, I appreciate your presentation because it is the first one that has put forward credible alternatives. You have outlined the options and it is appreciated. I believe that all of us at this table have realistic concerns that must be dealt with.
Part of our concern is that we think that the government is pushing for this bill and will push it through despite the fact that you and others would like the bill to be withdrawn. Coming from that perspective and reality, you always have to look at what is achievable by us, as a senate committee, to help you in your endeavours to make this more responsive to the JTF report, which I think is critical. Again, I thank you for your recommended amendments, as it were.
Perhaps we could put together a grouping of amendments that would address not all but some of your concerns — for example, the $7-million cap, which is a problem in dealing with this issue. In respect of the long-term financial commitment on the part of the Government of Canada, the time frames are totally unrealistic. There is no end to it. It could be three, five or seven years down the road.
Furthermore, the appointment process to the commission itself needs to be addressed. Coming from the Prairies, I recall that when we redid the Wheat Board Act, whereby there were elected members from the Prairie farmers appointed to the board for the first time. Why could that not happen in this case, for example?
Those are some of the examples. If we were to come forward with some such amendments, do you think that would be sufficient as a first step so that we could live with this bill and move on?
Mr. Cimon: I think so. If there were some changes, we would be able to live with the bill.
Senator Stratton: You had quite a shopping list. Of course, there are two kinds of shopping lists — a wish list and must-have list. I would appreciate it if you could boil it down to what you feel is essential. In other words, what you feel you must have so that you would be able to live with this measure.
What would be on that must-have list? You do not have to answer today but I would appreciate your thinking about it and getting back to us, if you could.
Senator St. Germain: The Senate has made some good amendments to certain pieces of legislation that have gone through. We are dealing with Bill C-6, which will be followed by Bill C-7 and other pieces of proposed legislation.
The AFN has said that we should just kill the bills and not amend them. Do we have a clear position from the Aboriginal community across the country in this respect? Should we work toward not accepting the bill in any way, shape or form? Should we work toward amendments, as you have proposed?
It is a bit confusing to us. I am in the opposition but, in the same breath, I would like to think that we could work in a non-partisan way in the Senate for the benefit of the Aboriginal community.
Would you comment on whether you are asking us to put certain pressures, if we can, on the minister to withdraw the legislation in its entirety or should we seriously consider amending it? The government has been quite reasonable in working on Aboriginal issues. We have recently dealt with Bill C-10B on cruelty to animals, with which I am sure you are familiar and which could negatively affect our Aboriginal communities. The government has worked with us on that measure.
This is not a trap. I am just asking you right out front how you would like us to proceed.
Mr. John G. Paul, Executive Director, Atlantic Policy Congress of First Nation Chiefs: Only time will tell when it comes to who says what and what will actually occur in the Senate and in the House. Our big issue is that the bill is flawed from its thinking point.
The main problem goes back to the joint task force, where people spent a great deal of time and effort working for years — not just weeks or months but years. There were legal people from across the country working with lawyers from Justice, Indian Affairs and Northern Development and other agencies to come up with something that they felt was workable. We then saw something different later on. It affects our level of trust in the government because of what actually came out of the JTF. How can you start from a round point without ending up at another round point?
That is where we are and it is pretty difficult to change the stripes on a cat. It is difficult and frustrating for us because of the effort that people put into the process before. It amounted to years of work and contributions by legal people across the country who developed the result of the joint task force. We were surprised after the fact that the machinery of government generated something totally different. We were shocked.
We acted in good faith all this time. We put our best foot forward to try to find compromise, to try to find options and so on that was workable for everybody who was there. Now we come back with something that somebody developed from somewhere. I do not think they had the participation or the commitment to participating in the joint task force as it played out. The work that went on for two or three years. That makes us really frustrated.
We put our trust in people we believe are representing the government — and legal people and so on — talking to us honestly, working with us, finding options and finding solutions to some very, very difficult issues. Yet, what comes out is something that is changed. If you are wondering why we are unhappy about it — our people put a lot of work in there. They did present tradeoffs and options; it was a good piece of work and it has been thrown to the side. We are asking you to look at that.
It will be pretty hard to tinker with it, or to make some adjustments with it, when some of the thinking around it does not really reflect a lot of the work that went on before. It really disappoints us greatly that officials from the Government of Canada met with legal people and advisers from our communities about this issue and then something totally different occurred.
We recognize the fiscal framework. We recognize the need for justice. We hope that the Senate can be innovative in terms of what it is doing here and to what actually happens in the next while. That is where we are.
We know the government's view. They want to keep going through and get it done, but we are the ones at the receiving end who will be affected. It is not the bureaucrats here in Ottawa. Those are claims that relate to us and our people — not Joe Public or anybody else.
Those are legal liabilities. Those are contingent liabilities from the Government of Canada. It is a matter of time, and we have been very patient to this date about this issue.
Senator St. Germain: There is no question this is a child of DIAND, which I feel is really detrimental to any causes that relate to our Aboriginal peoples. However, I think that we have got Senator Austin working with the chair.
In a nutshell, do you think the bill can be amended to work? You people at AFN and your various representatives from right across the country are as knowledgeable as any of us in Ottawa. Therefore, I would say to you, is it amendable or do you think the possibility exists to amend it to meet up with your requirements?
It does not matter if it is a joint task force or ARCAP, DIAND will do what it wants to do. I think there is commitment in the Senate; I have a lot of faith in the Chair. The lead person on this is Senator Austin, who is sort of hiding behind Senator Chalifoux. Do you think it is possible to amend it to make it right for you? If not, I would like an answer.
Mr. Paul: We will see what you do.
Senator Austin: Thanks for the short answer. I want to express my appreciation for your presentation. One of our experiences here in the committee is that we are getting a rather uniform set of presentations from the Aboriginal community. That is highly impressive. It seems to be a consensus that has developed amongst the community to take a position on Bill C-6.
I am the sponsor of the bill in the Senate; that means that I have undertaken to present the bill to this committee on behalf of the government. That does not mean that I am committed to the bill, lock, stock and barrel, as the old expression goes. I want to be clear that we are capable as a committee of considering amendments. We have that role.
Mr. Paul, I would like to address one of your major issues and to share my view with you. I could have made exactly the same speech when I was representing Canada in a number of cases with the United States. In the United States, dealing with the administration, you think you have cut a deal with them, but every congressman is a law unto himself and every senator is a law unto himself. They will start taking the thing and reshaping it — examples are the NAFTA, and the Free Trade Agreement and dozens of deals all the way down.
The reason for that is that they have distributed power through the decision-making process. We have done that, too, although you may not see it as easily in the Canadian system. What happens is that everybody has an oar; everybody has an interest and an opinion. You have to cut through all that and come to some form of middle ground.
Here in the system, we have a task force that I am sure did its work on a genuine and sincere basis — the government side as well. Then it goes to the minister and he says, I really love this and I am taking it to cabinet, and then he hits the buzz saw. ``Oh, my,'' says the Treasury Board, ``this may cost us money.'' ``Oh, my,'' says somebody else, ``I may lose money for my program in Transport,'' or ``this may cost something for some other department.'' Then they start the internal process and what you get is Bill C-6 — an internal government compromise.
Senator St. Germain: Then you have natives as victims of highways.
Senator Austin: Everybody is in this democratic process. This is a trade-off process, a brokerage process. I make that speech to you both to explain a process you already understand. I just want to put it on the record. That is what happens.
When it comes to us, we can push back to some extent, but there are limits within the cabinet of what they will accept. There are limits to how much financial exposure the country will take over a limited period of time.
We have had people representing the AFN tell us that they do not like the $7-million cap, but they will agree to a five-year cap — a total amount over five years. That sounds sensible; but the problem is that our Parliament can only commit one year at a time. Governments can commit but they need the approval of Parliament.
Therefore, we are wrestling with these things. I want to explain that to you. There is a lot to be said about the consultation process. I will share with my colleagues that I think we should put the consultation process in the bill. Regarding the cap, we will talk to government.
One other issue that I heard that really makes a lot of sense to me — and it was a suggestion from a previous witness — was that the tribunal cannot be independent when the officials come from DIAND and go back to DIAND. I agree with that. We have to deal with that, too.
I want to go back to Senator St. Germain's comment. He is trying to establish what we all would like to know. Is the Aboriginal community saying to us, ``Kill the bill; we will start over again some other time and we will live with the current Indian Claims Commission.''? Or is the community saying, ``Do your damnedest — if I can use that phrase, Madam Chair — to make it better than it is today. Tackle these four recommendations, push back with government and see if you can get something to make this bill a better one.''
That is my speech. I will just leave that with you.
Mr. Paul: I wonder why the work that was developed by the task force was not put through the system. Why was that work not vetted through the system? I understand your trade-off arguments, because we make choices. However, these things were developed by people who are experts in this field of claims. I cannot understand why others figure that there is a better way. Do you understand what I mean? It is difficult for me to understand why they did not go forward with that.
Senator Austin: To take a baseball analogy, it is whether you will be happy with a double-bagger, or not happy unless you get a home run. The odds of home runs are much longer than the odds getting onto first or second base.
Mr. Paul: We are very patient people.
Senator Austin: Is your patience telling us, ``Do not do anything, just let it die,'' or are you telling us, ``Do your best to change it?''
Mr. Paul: We are very patient people. I think that there still exists the legal process. Whatever comes out of this, we will just wait and see.
Senator Austin: Very well, thank you.
[Translation]
Senator Gill: There are a few native senators. There are obviously non-native senators, but some of them would like things to change regarding native matters. In my opinion, things can be changed provided only that trust prevails and, for the time bineg, that is not the case.
I would like to know why the joint committee interrupted its wor in 1998?
[English]
Who decided to cancel that and not to work on it any more?
Mr. Paul: I was there at different discussions that went on. It appeared that everybody was happy with the work that was done. The departmental officials took it back into the government and kind of threw the report away, I would say — as if it did not happen. It is like a story that never happened.
We did all this work, and then it did not happen. With government, the way it works, so many people change in the process that there is no history from the beginning to the end of this process. The history of the people involved on our side is all the same, but from the government side it was not the same people at the end. There were new faces, new players, and new approaches.
Senator St. Germain: It is called the ``confusion illusion.''
[Translation]
Senator Gill: You told us about reviewing it after a shile. If there were a review cluase in the bill, would you feel safer? Even if there were no trust, would you be more confortable to make amendments and includethis clause that would allow doing a review after a while?
Several People hope to see the bill disappear because the real consultation principle is not respected. Everybody understands that this will not happen. Would you accept an amendment review clause in this bill, even i you had to review them later on?
Mr. Paul: I guess we will have to wait and see what actually happens. This is all just potential of what could happen. Trust is very low in the relationship with the government. You are asking us to take a leap of faith. I do not know. It is hard to take that leap when the relationship is so bad. It is very difficult. We are losing hope and credibility in the institutions of Canada, in the institution of Parliament and the Senate.
When that happens, we look at that and say, ``What is going on here? What is happening to these institutions that are supposed to be respected and have the credibility of the Canadian people, and yet these things happen?'' Our communities just want to get these things settled. That is what we want.
[English]
Senator Forrestall: Have you drafted amendments along the lines of the nine or ten points, which you could leave with the committee for its consideration?
Mr. Paul: Our problem is that somebody outside of us is making the tradeoffs for us. Do you know what I mean? Somebody else is making the tradeoffs after the stuff was developed.
We are wondering, ``Well, what will happen?'' We are saying, ``Withdraw it and re-jig it and recreate it.'' We have to get over this trust issue to see any credibility in the process. We do not want a worse system in the end. Even if anything goes through and it gets amended, we do not want something to be worse. I do not know if anybody can predict what will be the actual outcome of whatever bill is created. Unless somebody has a crystal ball to be able to see that, then it is pretty difficult to see what will happen.
There are fundamental flaws. We need to re-build a relationship of trust so that we are not taking a leap of faith again in terms of trying to get something that we want. We want the claims resolved. Everybody wants that. In terms of the fiscal framework, it is a difficult call in terms of what the priorities are.
If you are starting something from the wrong logic, then you will end up with the wrong outcomes and the wrong implications. That is what we are worried about. We are worried about that.
Senator Forrestall: The short answer, then, Mr. Paul, is that you have not put in draft form any amendments or proposals?
Mr. Paul: We have not created actual documents. However, I recall that when the joint task force was doing its work, there was work that was done specifically on wording and legal terminology that would be used. The file got lost or sent away. Perhaps, the people moved away to Mongolia.
The Chairman: We resurrected it.
Mr. Paul: You did? I figured somebody hid it somewhere.
The Chairman: We found it. I would like to thank you both.
I hired an independent researcher. She is a Mohawk lady. We have heard so much about the bill and the joint task force. We have taken the bill on one side, and we have put all the joint task force recommendations on the other side and we are comparing everything. That is the beginning. We are really looking the at it.
Thank you both very much. It was very interesting.
You represent approximately 30,000 people, which is very important for us to know. That is a large community. The more that Parliament knows about it, the better off they are. Thank you very much.
Mr. Paul: Thank you for giving us the time. We will contribute what we can.
Mr. Cimon: Thank you very much.
The Chairman: We invite Chief Roberta Jamieson and her group to the table.
I want to welcome you here to the Aboriginal room of the Senate. This Aboriginal room was dedicated and blessed by a Mohawk elder with a large ceremony several years ago. It is a very special room. It is interesting how many parliamentarians just love to come into this room because it has a different feeling.
Welcome to the elder and to all of you here. I invite you to make your presentation in about 10 or 15 minutes, chief, so that the senators will have time to ask questions.
Chief Roberta Jamieson, Six Nations Council: I would like to introduce the people who have come with me. This is Cora Davis, who is a Cayuga clan mother from Six Nations of the Grand River. Next to Ms. Davis is Jo-Ann Green, our director of lands and resources. On my left is David General, who is a councillor with the Six Nations' elected council. We also have with us two other clan mothers, Mina Keye and Mary Sandy. We also have some very important grandmothers: Josephine Harris, Melba Thomas, and Joy Skye. I am pleased they were able to be here with us.
I will not attempt to read through our written brief, however, I will ask that it be filed in its entirety as evidence in the Senate hearings. I appreciate the opportunity to appear in front of the Senate committee studying this bill.
I want to start by sharing with you a Haudenosaunee teaching:
One day there was a young boy out hunting alone in the bush. He heard a voice calling to him. He stopped and looked around but did not see anyone and continued on his way. He heard the voice again, telling him to look down. The young boy realized that the voice was coming from a stone. He sat next to the stone and listened.
He would bring fish and game to the stone as thanks for sharing the wonderful stories of life. The young boy started telling the people in his village about the stories and things that he was learning from the stone and they began to come and listen too. Soon all the people in the village were happier and treating each other better from listening to the stories that the stone shared.
As with all teachings, that has a lesson. For us, it demonstrates the respect and tie that we experience with the land. Our ancestors listened and heard the messages provided by the land and the resources upon which we still rely. Lessons were taken from nature and acted upon by our people. The messages are heard. Six Nations hopes that this committee also hears our message.
We know something of the history of this standing committee. That is why I am confident that you will listen and hear our message. In particular, I want to call to your attention and ours the report of this committee of February 2000 entitled ``Forging New Relations: Aboriginal Governance in Canada.'' One statement in that report is relevant to what we are doing here today. I quote:
Aboriginal witnesses spoke of the need for independent structures outside the regular courts that can address the grievances of Aboriginal peoples, and supervise the negotiation and implementation of relationships of Aboriginal peoples and Canada.
The committee also noted, in recommendation number 2, that it was forward-looking in suggesting that a new office of Aboriginal relations be created, outside of the Department of Indian and Northern Affairs and Development. In that recommendation, the then chair, Honourable Senator Charlie Watt, commented that the report was echoing the Penner report of 15 years earlier. Another three years has passed since that report was issued; and the federal government has yet to remedy the problems and deal with the issues that remain in the government-to-government relationship.
Sadly, I can say to you that the relationships are deteriorating. The machinery of Canadian democracy, which we witnessed on the Hill yesterday and today, leaves our people quite distanced from our lands and resources in the process. We are still seeking fair resolution. We are still peaceful; we are still respectful; we are still coming forward asking that our voices be heard. Looking at Bill C-6, it is readily apparent to us that it does not provide fair, independent and speedy solution to long outstanding historical claims.
We appeared at the House of Commons standing committee. Sadly, many First Nations witnesses were denied that opportunity. I want to commend to you the need for this committee to hear from all those First Nations who are asking to be heard. There were a mere 10 hours' of hearings granted at the House of Commons committee. I think our people ought not to be disregarded in such a manner. I hope you will hear from them.
From what we can see, another nations' representatives are still making decisions that impact directly on our daily lives. That needs to change.
I want also to say that it is insulting for Minister Nault to describe the calls from our people to withdraw Bill C-6 from the legislative process as ``the work of only a few First Nations leaders.'' People of our Six Nations have been seeking redress through a fair and just process, raising our voices about the treatment of our land and resources by government for very many years — frankly, we have been doing it since 1784.
Let me tell you a bit about our people. We are the most populous First Nations community in Canada. We are 21,000-plus members. We are Mohawk, Cayuga, Oneida, Onondaga, Seneca and Tuscarora peoples — the only place in the country where these nations live together.
Our land was to comprise 950,000 acres — a single tract. In the 1900s the then Minister of the Interior said in a letter:
It is the policy of the Canadian government, as I understand it, to recognize its relations with the Six Nations Indians of the Grand River as being on a different footing from those of any of the other Indians in Canada. The Six Nations Indians of the Grand River came to Canada under special treaty as the allies of Great Britain, and the policy of the Canadian government is to deal with them having that fact always in view.
In the American Revolution, we fought as allies with Britain. When that war was over, we came to Canada from the Finger Lakes region of what is now New York State and settled along the Grand River. By Haldimand tract, we received that land. The relationship of allies is something we have recorded over and over again in our wampum belts, which our clan mother has brought here today. Probably the most important for us — and you may be familiar with this — is the two-row wampum belt. It was our people who were the nations who committed to this relationship.
To explain these belts to you would take some considerable days. We do not have days. However, I merely call them to your attention to remember that they are a very sacred record of our treaties and our relationship with nations who came to Turtle Island, which we have inhabited since time immemorial. We look to these belts for our relationship as allies to this day.
Please keep that in your mind as you consider how odious Bill C-6 is to our people, to attempt to deal with the outstanding land issues.
We now reside on 4.8 per cent of the original allocation. Between 1974 and 1994, we submitted 27 specific claims against the Crown. To date, only one has been resolved.
It became apparent to us in the 1990s, that a satisfactory resolution would not be available under the then claims process. One of the most offensive terms of that process was the prerequisite for extinguishment of our children's rights to the land at issue. It is our obligation to plan ahead for the seven generations; extinguishment is not an option.
During consideration of those claims, it was suggested by government that if we did not like what was on the table we could always go to court. That is what we did in 1995. We remain there to this day — seven years later — with our claims. What we are looking for in the courts is an accounting. What happened to the other 900,000 acres that were ours? What happened to the funds that were collected over those lands?
When we went to court, the Department of Indian Affairs closed those files. They did not reject them, which meant we were prevented from taking them to the Indian Claims Commission as an alternative forum. They also cut off all research dollars to our community on any land or resource-related issues — not simply the cases that went to court, but anything.
We continue to live with the effects of our continuing claims: the economic uncertainty, frankly, in our region — some of the richest land in southern Ontario; the disputes over jurisdiction; the confrontation and blockades that have existed. We have a notification agreement with the surrounding municipalities and so while we know what is going on on the lands, our people still are sitting by watching others benefit from the lands and resources that are ours.
We have always believed that the best solution to this was negotiation. I am sorry to say that the only way the government is willing to negotiate with us is if we will suspend our litigation. I am a lawyer. I do not know any lawyer in this country or anywhere else who would sit down to negotiate anything by saying, ``I will discontinue the court case.'' It is, after all, often the court case that creates the climate that puts people at the table to negotiate. The court case continues and nothing is resolved in our case.
Is Bill C-6 an answer for us? Absolutely not. It is woefully inadequate. I will not repeat much of what was said to you before about the headings under which we find it unacceptable. I will touch several of the high points and then conclude so that we can have some discussion.
We, too, are sad that Canada did not honour its undertakings to establish a truly independent claims process and ignored the joint task force. We, too, are sad that it continues to decide internally and secretly whether specific claims are valid or not. We are sad that the commission would report to the minister. We are sad about the high degree of federal control over the rules applied. We are sad and find it offensive that a conflict-of-interest situation would be allowed to continue in this century in this country, and that we should be expected to stand proudly and accept any fairness or justice that prevails in any of this process when that is the case.
I do not think you would find a court in the world that would accept that as fair.
We think that it is important to take into account the cap of $7 million and the fact that the Indian Claims Commission itself raised in the House of Commons evidence that after 11 years, only three of the 100 claims or more that they considered were valued at less than $7 million.
Our claims — the 27 alone that are sitting — are not going to be under that cap. We also want to dispel a myth that was raised by the minister when he appeared before your committee. The myth about Bill C-6 the minister attempted to dispel was that every First Nation, no matter the size or amount of their claim, would have access to the variety of alternative dispute resolutions mechanisms at the commission. He forgot to mention that this only takes place for claims over $7 million after he has made a determination as to the claim's validity. We also think that the right to an independent body's determination of claim validity must absolutely be a separate issue from the compensation sought.
We are sad that the powers that the current claims commission has to compel the production of documents and other witnesses is not in Bill C-6. We are sad that there is no requirement for the Government of Canada to provide reasons for finding a claim invalid. We are sad that the delay inherent in the current system will continue. Regrettably, there will be more opportunities for delay under Bill C-6. You will see in our brief a list of the opportunities that occur to us.
We think it is shameful that the Department of Indian Affairs and Northern Development is able to consider a claim indefinitely. We think it is shameful that First Nations will be required to absorb the costs of negotiation and participating in the process as part of the $7 million overall cap. The government, for its part, is able to enjoy the lands, the resources and the money interest free, and in the end any award is paid in inflation-reduced dollars. That is incredible.
We think that this amounts to unconscionable pressure on First Nations to settle claims for less than $7 million. It is unconscionable when you are dealing with people who are dispossessed, chronically underfunded, poor, unhealthy, and all the other statistics that characterize our situation in this country today. It is simply unconscionable.
We, too, have our share of circumstances that are pressuring our community to settle these things. Our people do not have the expectation of safe drinking water that Canadians take for granted. Three hundred fifty-two students in our community who were accepted for post-secondary education last year were unable to be funded. Sixteen hundred of our families are on wait lists for housing. The wait list is 10 years long. Our members wait months even for emergency housing.
I could go on. The statistical circumstances that outline the situation of our community are tabled for you in the brief in their entirety.
At least under the current system, delay can be argued before the Indian Claims Commission by the federal government in responding to complaints as constructive denial. That possibility is gone under Bill C-6. The procedural flexibility and fairness that is common to many tribunals in Canada under law is denied this commission.
The independence — lack thereof, I should say — is fatal in this commission. There is no credibility in a body when the person claimed against, controls, appoints, reviews, pays and determines the outcome.
There are precedents to have independent appointments to which I would commend your attention. One is the Indian Commission of Ontario, which was a body created in the late 1970s in Ontario by complementary Orders in Council federally, provincially and by resolution of the First Nations in Ontario. I know, because I was a commissioner subsequently appointed in the 1980s.
There are also opportunities for independent appointments under NAFTA. I am sure you have researchers who have dug up these examples for you. There are ample opportunities to look at precedent elsewhere.
There is no joint review. That, too, is fatal. There is no public reporting. In this day when the public of Canada is requiring accountability, transparency and reporting so that they can evaluate how we are all doing at dealing with issues, that is also fatal. In your report ``Forging Relationships,'' you clearly spoke to the need for public reporting of any of these mechanisms.
Regional participation is also problematic. The fact that only the minister gets to evaluate the effectiveness of the process under Bill C-6 is incredible. What would you say other than it is doing an okay job when you are the one being claimed against, you are funding it and you are controlling the speed? How could you condemn the process when you are controlling it and you review yourself, in effect? It is incredible. It will not wash with the Canadian public, in my view.
There is no process for the transition and status of closed files. Who knows what will happen with the files that are at the Indian Claims Commission now? The conflict of interest is clearly a fundamental flaw.
Allow me to conclude my remarks, because the details of all those headings are in the brief.
If Bill C-6 proceeds in its current form, our people will continue, sadly, to suffer the consequences of unremedied damage to our land base and our assets. The Canadian government and people will continue to deal with the social dependency that could have been alleviated by restoring to our people what is rightfully ours. They will be dealing with spiralling and increasing health care costs, mounting litigation in the courts, damage awards from the courts that will grow more costly as economic losses and interest grow, and uncertainty over the results of litigation — that I assure you will hamper planning and economic development by all concerned — as First Nations increasingly assert our rights in our land areas and speak to corporations and the private sector about the uncertainty in the climate.
In the experience of Six Nations the federal government seems to be trying to paddle our canoe and steer Canada's boat at the same time by deciding for us how, where and when our outstanding lawful obligations will be resolved or addressed, if at all.
The result is an emerging mountain of unresolved liability that will stand in the way of improved and cooperative relations between First Nations and Canadians as a whole. It is very hard to comprehend how the Government of Canada can be seen to be truly acting in the best interests of mainstream Canadians when they are delaying and avoiding access to a fair and equitable specific claims process.
We believe it is imperative that Canada deal with the outstanding land issues and act in accordance with our constitutionally recognized rights gained in the last 20 years. What happened to that inspirational partnership from 1982? I remember it. What a fabulous feeling of hope, hard work and energy to which we were all able and willing to commit ourselves. Let us get that back and get on the right track.
I ask this committee to review this bill in light of section 35 of the Constitution. I ask this committee to review this bill and the rest of the so-called Nault suite of legislation — anything but sweet — in its entirety. As a group, you need to satisfy yourselves and Canadians that this is not about containment and termination of our people, our rights, our lands and our survival, because that is what it looks like to us. It is plain and simple. It is not about survival; it is not about continuing land base for our people. The tribunal can only award money. It is as a check-out counter has opened but only if you have less than eight items for our people. That simply is not about a future for the Six Nations of the Grand River or any other First Nations in this country.
I ask you to study the impact of the entire suite of legislation. I ask you not to proceed with Bill C-6. I ask you to give it the consideration it requires. I ask you to measure it against the Constitution, the joint task force report and the ``Forging New Relationships'' report of your committee. I ask you to satisfy Canadians that it is a just process, because I believe it is not.
Our people and I look forward to a future that is free from the burden of unresolved claims. I do not want to wear this into the next century or my children or our seventh generation. Do you? I do not think so. We want to meet the needs of our community, just like our neighbours do and those of our generations to come. That means our issues must be dealt with fairly.
If they are not, our people will be in a few places because there will be no other alternatives. Without a fair process, our people will be in the courts if they have money; or in the streets if they do not. Increasingly, if the courts do not provide the justice our people seek, you will see our people in the international arena, because our people will seek fair treatment. We will look, as we must, for the forums that are required to address our issues, just as Deskaheh did in the 1920s when he went to the League of Nations from Six Nations.
For us, Bill C-6 is not creating a Canadian centre for the independent resolution of First Nations specific claims. It is creating a centre. It is creating a front for the continuing avoidance and delay to deal efficiently with land issues affecting the First Peoples of Canada. It is surely worse than the status quo. You will not hear amendments from me today, senators. This bill is not amenable.
I have asked this committee to hear our voices and to recommend the study that I have suggested. I ask you to delay the passing of this bill. I ask you to return to a joint process that has integrity, credibility and the true involvement of our people so we can demonstrate to Canada a cooperative relationship, a partnership to address outstanding issues between us.
Six Nations as allies is doable and necessary for the future of all of our people on this land we call Turtle Island.
The Chairman: Thank you very much for a most impressive presentation. We greatly appreciate it.
Senator Stratton: Chief Jamieson, that was very impressive, but also very bleak. I do not think I have heard quite as bleak a forecast before. I have travelled this land for quite a while and I have been on reserves in most parts of the country, particularly in Manitoba, where I am from.
It is particularly bleak when you tell me that this bill should not be amended at all. You get the sense that the government is determined to put this bill through. Therefore, we look for ways and means to make it more palatable to your people. It is unfortunate and tragic that you do not believe that.
You have described a process that should take place. My concern and worry, though, is that they will push the bill through any way. Ultimately, the government will push this bill through unless this committee makes the determination that we will not deal with this bill until we have seen all three bills.
Our side has asked: Why would we look at each bill in isolation? Why would we not look at all three bills? By doing that, we would get a better picture of what is transpiring and how we could make it better for all concerned.
That is what you are recommending to us, as I understand it. Is that correct?
Ms. Jamieson: That is absolutely one of the things I am recommending, that the three be looked at as a package, as a whole landscape, but not on their own, either. The landscape is bigger. The landscape is forging new relationships. The landscape is the Royal Commission on Aboriginal Peoples, RCAP. The landscape is the evidence that has been presented across the country from our people.
You do need to look at the direction. What is this all about? Why is there such a determination to ram these bills through? With all-night sittings, you would think there was a national emergency, the way these bills are going forward. What is this? What is driving this?
Senator St. Germain: Legacy.
Ms. Jamieson: I have lost sleep thinking about what is driving this. Why is there such a fear about working with our people? What is wrong here?
Why is it okay to ask us to accept amendments because this is going ahead anyway, when we sit and watch others enjoying the lands and resources of our people. Then we come to the table with a piece of a loaf and we are told, ``Even the piece of the loaf is not palatable, so better accept something less.'' Our people will not do that in 2003. We will not do that after the Constitution.
We rely on the goodwill and faith of the Canadian people as evidenced in the 1982 Constitution Act. There were two sides to this; it was not just us. We will settle for nothing less than honouring the relationship that we have committed to and maintain a strong commitment to.
I must say that because these clan mothers are here, insisting that our seven generations be taken care of.
Senator Stratton: I have nothing further to add, thank you.
The Chairman: What I am hearing you say, Chief, is that you do not want this bill withdrawn, you just want it held back until all three are done with?
Ms. Jamieson: I would love to see this bill withdrawn. I would like to see them all withdrawn. I have been blunt about that. I have told you where I think the destination is that they are going: it is a dead end for us.
The Chairman: What is your alternative, then?
Ms. Jamieson: To see the whole picture, you need to look at the three bills together.
My alternative is, please take off the shelf section 35 of the Constitution. Please take off the shelf the Royal Commission on Aboriginal People. Please dust off the Penner Committee report from 1983 on which all parties in the House on the committee were able to agree.
Our people participated wholeheartedly in the RCAP and the Penner Committee. Please take off the shelf ``Forging New Relationships'' and put that picture together. That is a joint, honourable process. There are alternatives.
I keep hearing the minister and others say, ``Where are the alternatives?'' For heaven's sake, they have been there for many years. Let us put them back on the table.
In the case of Bill C-6, alternatives include an independent process, joint appointments, a tribunal without a ridiculously low cap, the ability to compel the production of documents, the ability to require the Government of Canada to behave honourably in the process. Those alternatives are all detailed in these reports. What we need is courage, vision and energy to get back to looking at where we should really be going together in this country.
The Chairman: Excellent.
The Senate has a different procedure than the other place. We are not as partisan, and we can really look at the bills. We have concerns regarding Bill C-6. This committee is beginning to research, and to look at this whole situation. The Senate cannot deal with money, but there are other creative ways; as some old warriors, we can look at that.
Ms. Jamieson: I know this is the place of sober second thought. If there ever was a time where sober, second thought was required, it is now. I know this places heavy responsibility on all of you. There is not a heavier one because this is coming to terms with Canada's history and dealing with the First Peoples.
I firmly believe Canada will not be able to go forward with the country's head held high until we come to terms with our history and our past. Here is an opportunity to do it, not make it worse.
The Chairman: We have heard that this could be the beginning of a third order of government, under section 35 of the Constitution. That is what we have been told.
Ms. Jamieson: Who told you that?
The Chairman: Some of the witnesses. In order to have a third order of government, you need structures and institutions. In your opinion, could this, Bill C-6 and Bill C-19, be the beginning of two institutions?
Ms. Jamieson: Absolutely not. They have nothing to do with government. They have everything to do with ``administrivia'' — more Indian Act control. That is why our people call these documents Indian Act II. Bill C-19 is four Indian Acts but into institutions. Bill C-7 is Indian Act II and Bill C-6 I have described.
Government is about access to lands, resources, fiscal transfers, and the ability to take care of our own. Institutions? We do not have the time, senator. The clan mother is sitting here with me. The confederacy council, of which she is a part, founded democracy in the western world.
Institutions? We have a bicameral house in which clan mothers decide who are the chiefs. Children have rights. We have law-making institutions, dispute-resolution institutions. They are abundant; they are rich. Indeed, they were relied upon when the United States drafted their constitution.
Institutions? We have them. Take off of our backs the Indian Act and all the rest of the things that are smothering our institutions and our people.
We have the wherewithal to make our own decisions, to be healthy, to respect the human rights that are ours — individually and collectively — to contribute in an incredibly rich way to this country. We want the opportunity to do that. We are determined to have it and to exercise our rights.
Institutions? We have them. We require the respect for our institutions.
The Chairman: You spoke about the Indian Act and government control. Where I come from, in the north, in the mid-Canada corridor, when you walk into the communities and reserves there, you are walking in about 75 years ago. They tell me that we cannot get rid of the Indian Act because they are dependent on it at the moment. They are just learning to become self-sufficient because they have come from a traditional lifestyle into an Industrial Revolution in Canada to which they have not had time to adjust.
How would you deal with those communities? How would you look at those people?
Ms. Jamieson: You are asking me to give an opinion on communities that, in a hypothetical situation —
The Chairman: It is not a hypothetical situation. It is a real situation.
Ms. Jamieson: You have been there; I have not. What would I say?
I would say that we have struggled with this. Some people think the Indian Act is very useful because it is the only protection they have for their land, as terrible as it is. I would say we have moved well beyond the Indian Act and we did so in 1982.
The Chairman: They have not. How would you, as a leader, work with those communities, in order to bring them up to your level, because they are about 75 years back?
Ms. Jamieson: I cannot make a judgment call. I am uncomfortable with the ``my level'' analysis. I cannot judge what level.
The Chairman: This is the dilemma that we face.
Ms. Jamieson: I would allow First Nations themselves to have their own institutions that would enable them to do capacity-building; to have their own institutions; to work together, whether as a treaty group or whatever makes sense to them and relates to their nationhood.
Why are they in that situation? Because some bureaucrats in Ottawa have been making decisions for them, controlling their lives at long distance. That is a failure. Let us not do that any more.
I do not care however benevolent, I do not think these bills are well-intentioned. I will be blunt. However benevolent some people think they are, they will not help those people. They will make matters far worse, I suggest to you. What they need is space, empowerment, capacity building over which they feel ownership. I think in this country, we have the wherewithal as First Nations to create those institutions. There is no doubt about that. We also have the responsibility.
The Chairman: Thank you very much.
Senator Gill: I want to thank you for your presentation. It is the result of good work that you have been doing for the community. It is very good for the Senate to hear what you said. I would like to hear more people hearing that.
Ms. Jamieson: Could I add something the councillor just mentioned to me about diversity. We are quite diverse as First Nations, but please do not make the mistake that Six Nations or any other is special and more capable. There are many hundreds of First Nations in the country who have the ability, the right, and the determination to do these things. I am not saying you said that, Senator Gill, I merely wanted to make that point for the record.
You might benefit from hearing from a number of experts.
The Chairman: We already have them in mind.
Ms. Jamieson: May I suggest a few? Mr. Justice Antonio Lamer, Retired Chief Justice. Mr. Justice E. Patrick Hart, who was the first Commissioner of the Indian Commission of Ontario. If you do want to hear about the experience of the Indian Commission of Ontario, which was a neutral facilitator-mediator, I would be delighted to come back as a former commissioner. If you want to hear about the Penner report, I would be delighted to come back as former member of that committee.
There are many people who have thought about these tough questions and who have much to offer to your thinking. Those are just a few names that have occurred to me.
Ms. Cora Davis, Clan Mother Cayuga, Six Nations Council: Thank you for hearing us.
The Chairman: I echo the words of Senator Gill. You are more than welcome to stay to hear the next presentation.
We have heard some very interesting presentations. Our next witness is Grand Chief Carol McBride from the Algonquin Nation Secretariat.
Before we begin, I would like to ask one question. About how many nations do you represent?
Grand Chief Carol McBride, Algonquin Nation Secretariat: I represent three Algonquin communities.
The Chairman: We want to make sure we hear as many witnesses as possible. However, because of the huge number of witnesses that want to appear, we have chosen to go by region. Because you are elected from your region, you have the ability to speak on behalf of the people that you represent. It is really important that we hear from as many as we can in the time that we have.
Ms. McBride: I thank you for the chance to speak to you today. My name is Carol McBride, and I am the grand chief of the Algonquin Nation Secretariat, which represents the First Nation communities of Timiskaming, Barrière Lake and Wolf Lake. Our traditional territory lies in northwestern Quebec and northeastern Ontario. With me today is Peter Di Gangi, director of our tribal council.
We are glad to have a chance to speak to you about Bill C-6 because we believe that as the bill currently stands, it will have a negative impact on our communities and will be a step backwards in the efforts to obtain a truly independent and fair process for resolving specific claims. To put it simply, the status quo, as bad as it is, would be better than the future under Bill C-6.
We have reviewed the testimony of some of the previous speakers, including representatives of the Assembly of First Nations. We believe that they have provided you with ample information on the shortcomings of the bill.
Realizing that the time is short and not wanting to repeat what others have said, I will focus on two areas tonight. One concerns the content of the bill as it affects our member First Nations. The other concerns the process that has been used to move it through the system.
Our three member communities have very different histories, but all of us have potential specific claims. Unlike many other parts of the country, we did not get involved in the claims process until the mid-1990s. We have spent the last five years preparing the research and documenting our history to identify potential claims that we might have. We are now putting these into the system. I would like to give you a sketch of our members.
Wolf Lake never received reserve lands even though they began petitioning for a reserve in the 1880s. They lived in the bush until the 1970s when they were forced to disperse their settlement at Hunter's Point. Today they are pursuing a claim for reserve lands. The basis for their claim is not treaty or any law, but the fact that the Crown promised them lands and then went back on the promise. They suffered as a result.
Barrière Lake did not get a reserve until 1963, but Quebec would only allow barely enough lands for housing — only 59 acres. They have been severely impacted by the operation of storage reservoirs at Dozois and Cabonga, leading to flooding and erosion of their tiny reserve.
My own community is Timiskaming. Our reserve was surveyed in 1854. Originally, it was over 69,000 acres. Through a series of re-surveys and almost 40 surrenders — many of them apparently illegal — our land base has been reduced to just 5,000 acres.
I should also mention that the Algonquin Nation is party to a number of treaties with the British Crown, entered into between 1760 and 1764. These treaties were not land-surrender treaties; they were peace and friendship treaties that covered a range of issues to ensure our protection and our co-existence.
Mr. Peter Di Gangi, Director, Algonquin Nation Secretariat: I would like to speak to some issues regarding the content of the bill and it would affect our member communities to give you a practical view of the impact.
As the grand chief mentioned, the communities were late coming into the land claims process. They basically missed the first 20 or 25 years of land claims research. A number of claims have been identified, but if Bill C-6 were passed as it stands now, it would prevent us from pursuing many of the claims that we have identified over the past few years.
We have seen the testimony from the Minister of Indian Affairs and Northern Development and his officials indicating that Bill C-6 does not claim the specific claims policy and that it only makes it more precise and confirms existing practice. Either they are do not know their policy or they are simply not telling you the truth.
Bill C-6 restricts the specific definition of a specific claim to fit into the narrow interpretation that the Department of Justice has chosen. If this bill is passed in the way that it is drafted, our member communities and many First Nations in Quebec will be negatively affected.
Another major problem for our communities is the cap of $7 million, which would prevent large claims from being able to go to the tribunal. This will have the effect of punishing First Nations who have experienced the worst losses and allow Canada to not be brought under binding an authority on its worst breaches.
I will give you some specific examples. Bill C-6 restricts treaty claims to those involving land or other assets. It would eliminate claims based on treaty rights to hunt and fish. It would eliminate claims arising from unfulfilled aspects of 1760, to which our communities are party. It would wipe those out and eliminate them as potential bases for claim.
Bill C-6 would not allow claims based on what is called ``unilateral Crown undertaking'' — in simple terms, that means when the Crown has made a promise that is not necessarily tied to a treaty or to legislation. For instance, a promise to create a reserve outside of treaty or outside of legislation would be considered a unilateral undertaking, and it would not be considered eligible under the new definition of specific claim. In Quebec, almost all of the reserves were created outside of treaty and most of them were created outside of legislation. That would have had an impact on most of the reserves in Quebec — not just our members.
Bill C-6 would prevent the tribunal from ruling on claims worth over $7 million. Wolf Lake, one of our member communities, has a claim outstanding now for reserve, which, if you calculate the cost of obtaining land, providing housing, setting up the infrastructure, and damages related to the loss of services, this would amount to much more than $7 million. That claim would not have the opportunity to go to tribunal, or to get a determination.
The minister and his officials are saying ``Don't worry, trust us, we would negotiate these claims in any event.'' However, based on the history we have seen and the way the federal government has treated the communities, there is absolutely no reason to take this assurance. Without the incentive that comes from being able to appeal to a higher binding authority, it is simply a matter of fact that Canada will not be motivated to deal with these claims worth over $7 million.
Another example is damages experienced by Barrière Lake as a result of flooding and relocation from the reservoirs at Cabonga and Dozois. It is likely that the damages relating to those reservoirs exceed $7 million. They would not be able to get an independent hearing.
With respect to Timiskaming, there are a number of boundary changes and a number of very large surrenders that appear to have been illegal and it is clear to us that those are valued at over $7 million. Those, too, would be off the table and not able to get an independent hearing.
To summarize, Quebec First Nations are not party to land surrender treaties. Reserves in Quebec were most often set up by unilateral Crown undertaking. Many of our claims are worth more than $7 million. The cap and the changes in the definition of specific claim will have a very significant and severe claim on not only our communities but also many First Nations in Quebec. It seems to us that the rights and interests of Quebec First Nations and the kinds of claims that they have were either not considered in the development of the bill, or simply they were considered and a decision was made to eliminate a whole class of claims and series of claims that might arise from the Quebec situation.
If Canada were really committed to a fair and independent claims process, one option would have been to just simply leave the definition of a specific claim, as it is now in the 1982 policy, or to adopt the definitions contained in the joint task force report and then let the tribunal rule on admissibility of claims. That would have been the fair thing to do. As it is done now, the government has let the Department of Justice essentially rewrite the basis for the claims policy in a way that is beneficial to the Crown, and remove from this commission the ability to make those determinations itself. Effectively, before it signs off and hands it over to the commission, it is basically stacking the deck in its favour.
We will not enumerate all the problems here because there are too many to go into in the short time we have. However, a third major problem is the lack of true independence so long as Canada controls the appointment of commissioners. Other speakers have explained this and we share their concerns. We are told, ``Do not worry, trust us, we will use the appointment process in a responsible way.'' However, just seeing the way the government has manipulated the committee process with C-6 gives us a very clear idea of the kind of abuse that results from unilateral appointments when one side can stack the deck. We do not have grounds for confidence in the ability of government to step aside and maintain integrity in the appointment of commissioners.
Ms. McBride: I would like to touch on some of the grave concerns we have about the process used to get the bill to this stage. Minister Nault has said that there were ample consultations with First Nations. This is simply not true. Yes, there was serious cooperative work between 1995 and 1998 in the joint task force, but the federal government walked away. When they came back, it was Bill C-6, which is different from what the joint task force called for.
Since then, the federal government has made no serious effort to consult us, or our members, or our political organizations. Instead, it was seems like they were telling us what would happen and if we did not support it then get out of the way.
We were lucky enough to appear before the standing committee of the House of Commons, but many First Nations were denied that chance. In the end, the Liberals used their majority on that committee to ram the bill through. They entirely ignored the testimony of the First Nations. It seems like the parliamentary process has been manipulated to restrict debate and prevent our interests from being considered or accommodated.
This is shameful, especially because Canada has a special fiduciary duty to the First Nations. This means that the government must act with our best interests in mind and be honest. We feel that this bill and the way the government has proceeded with this bill is in breach of these fiduciary duties.
Here we are before the Senate committee. We are having our 15 minutes, but for the record, we have to say that this is not adequate consultation. Our appearance here today in no way supports the process that Minister Nault has imposed.
As senators, will you do the right thing? Will you ensure that our rights are considered and accommodated? I hope that you will.
I speak from my heart here. I did not partake in much government process before. I have been very active in Bill C-7 and Bill C-6 and I have made different presentations. I was never so discouraged as when I went in front of the House of Commons committee. People were writing their Christmas cards and filling in tax returns. It is our life they were talking about. They did not take it seriously at all. Therefore I am coming to the Senate here to ask you — to beg you — to do what is right, to make this government do the right thing. They have a fiduciary duty, and maybe you can make sure that they keep that promise and protect that duty they have towards us.
We are being told by Minister Nault about how we need to learn about transparency and accountability, and about how we need to run our government at home. However, with this bill, and with Bill C-7, we have had a chance to see how your government is run and it is a lot different from what the minister expects from us. After seeing how the legislation has been rammed through and all of the misinformation and half-truths that have come from the Department of Indian Affairs and Northern Development, and the way the committee process has been manipulated by the government, we do not truly see any evidence of accountability or transparency or democracy. In fact, I think you could take some lessons from us.
We are hoping that honourable senators will have the integrity to do the right thing, no matter which party appointed you. You must act as a check on the power of the executive arm of this government. You have a duty, not only to the First Nations but also to Canadians, to ensure the integrity of the democratic process.
The right thing to do is to recommend that this bill be withdrawn and the government sit down with the First Nations to work on something that is more balanced and takes our views and our interests into account. As it is, the bill is so bad that it cannot be fixed by amendment. It should go back to the drawing board so that we could make it better and be proud of the result.
The Algonquin people have suffered greatly since we welcomed the Europeans into our territory over 200 years ago. We have been exploited and lied to by many governments over the years, and our situation has only gotten worse. Here we are today, however, still hoping that your institutions will consider and accommodate our interests. Our experience with Bill C-6 and Bill C-7 does not inspire much confidence. However, we appeal to you to make a difference and to do the right thing.
Meegwetch.
Senator Gill: For the benefit of my colleagues, could you tell us about the Algonquin, the parks and the forestry exploitation?
I have visited many Aboriginal communities and I think that the economic situation in your community is among the worst for the Aboriginal people.
Mr. Di Gangi: I would like to give you a bit of background. Originally Algonquin Nation territories went as far east as Trois-Rivières, as far south as Upstate New York and as far west as Georgian Bay and the Wanapitei River in Ontario. In the north, it went as far as the southern part of Cree territory.
As settlement proceeded in the 1700s and 1800s, through a combination of dispossession and disease, the Algonquin Nation's territory shrank such that today it is described as the lands that are covered by the waters that drain into the Ottawa River on both sides of the provincial border. The Ottawa River watershed is what we are speaking of today in terms of Algonquin Nation territory.
There are about 10 First Nation communities. One is Golden Lake in Ontario. They and the Maniwaki, which is just a couple of hours north of Ottawa, originally went to the mission at Oka, Lake of Two Mountains. They had to move from there in 1870 and the people of Golden Lake had to purchase their own reserve with their own money because Ontario would not provide them with reserve land. Maniwaki obtained a reserve in 1854. The northern Algonquin communities and Timiskaming obtained a reserve in 1854, but the other communities remained without reserves.
Even today, there are nine Algonquin communities in Quebec. Across Canada, there are 12 historic bands that are considered landless and 25 per cent of them are Algonquin. Grand Lac Victoria does not have reserve land; Long Point, the settlement at Winneway, does not have a reserve land base. Wolf Lake still does not have a reserve land base. Barrière Lake has a reserve of about 59 acres with a population of over 500 people and they still live off the land. However, their entire territory is subject to timber licences, and sports hunting and tourism.
Economic studies have been done with Barrière Lake and we have calculated that between the tourist industry and the logging industry — not including hydro electricity — about $100 million per year is taken out of their traditional territory and not one of their members is employed in the resource sector — not one.
I could go on and on. The other significant thing about Barrière Lake is that the community is only three hours' north of Ottawa. They were flooded out so that Hydro-Québec could create storage reservoirs to generate electricity. They have no electricity, still depend on diesel generators and there is only one telephone. Yet, they are only three hours away from Ottawa. If you get out of the car and walk around, you will hear all the kids still speaking their own language. English is a second language and French is a third language.
Senator Gill: Because you do not have reserves, you do not have much housing. This is another problem.
Mr. Di Gangi: That is right. If you do not have a reserve, then you have no access to federal housing programs, education and core funding. All of these issues related to programs and services are denied to communities that do not have a reserve. We could go on. The communities look toward the potential of specific claims as one way of addressing these disparities and underdevelopment.
Unfortunately, the way the bill is crafted — whether by design or by accident —undermines the basis of many, many claims of First Nations in Quebec. Quebec is different from the Prairies and B.C. and Ontario. Unfortunately, our communities and others in Quebec will take a big hit if this bill passes. Today, they could put claims forward under the existing policy that they would not be able to do under the new proposed legislation.
Senator Chaput: I thank you for your presentation, which was clear and consistent with other presentations we have heard.
As you said, we are the chamber of sober second thought. Let me tell you, we have food for thought because we do not have many options. First, we could accept the bill as it stands but from my point of view, that would be impossible. Second, we could reject the bill. Third, we could amend it. Those are the three options.
This committee has also been meeting with Aboriginal youth from urban areas because we are also working on the needs of those Aboriginal youth who are living in urban areas. As you know, these youth do not have access to most of the programs that are available if they are still on reserves. Have your youth been informed of what you have been preparing? Are they aware of what is happening? Have they been able to tell you what they think about all of it?
Ms. McBride: They are part of the process. I receive my direction from the community chiefs who, in fact, have general meetings within their communities to look at the process. Youth participate in that area.
Senator Chaput: They participated in this?
Ms. McBride: Yes.
Senator Adams: Thank you for coming. I come from Nunavut in the Arctic. When did you begin your claim process with the Department of Indian Affairs and Northern Development? Have you been successful thus far? You mentioned that you represent nine communities.
You said in some communities there is only one telephone. With the cap at $7 million per claim, can you tell me how far you have gone? Have you started off provincially or are you on your way to the federal process? Can you give me an idea of how the system works right now with the government and how you claim future settlements?
Other witnesses who appeared before us would like to see the three bills — Bill C-6, Bill C-7 and Bill C-19 — not be passed.
Ms. McBride: I will touch on your last question first, senator. I will let Mr. Di Gangi answer your first question.
You should take the three bills out and study them. If you do that, you will see clearly how it all fits in. For the communities I represent, these three bills have to be rejected. Once you look at them you will see the reason for that.
Mr. Di Gangi: I should clarify, senator, that our tribal council represents three out of the nine Algonquin communities in Quebec. Of our three communities, we started late doing land claims research. They started to fund land claims research in the early to mid-1970s. For whatever reasons, the communities in northwestern Quebec were not involved in preparing their history or research until quite late. It was not until about 1995 or 1996 that we started to undertake the research. We found that there was quite a challenge because of record-keeping, et cetera.
To make a long story short, out of our three communities we have identified with Timiskaming alone there are approximately 40 potential claims based on each of the surrenders that look to us as if they had some serious problems. That is just claims related to surrenders. That does not include trust fund management or the surveys.
Wolf Lake is the one community of our members that has actually submitted a claim. They submitted a claim in 1996 — a specific claim to Canada for a reserve. The government rejected it. We agreed to do additional research.
In January of 2000, the chief met with Minister Nault and provided him with a brief saying, ``Here is a summary of our evidence. We feel we have a valid basis to obtain a reserve because they are a landless band.'' They asked the minister to review it and to expedite it to see if we could resolve it administratively outside of the claims process. The minister committed to fast-tracking the Department of Justice review. The ``fast track'' took about a year and a half for the Department of Justice to review about a 20-page document — maybe 30 historical documents. They went through, I think, two or three different lawyers in that period of time. They rejected the claim again.
We thought about putting more evidence in to the department. The view was that it would not get a fair hearing. They said, ``You can go to court or to the claims commission.'' The chief and the council decided to go to the claims commission. We have been there since last September. It actually is proceeding. The claims commission has been helpful in terms of keeping the government honest and compelling it to meet deadlines. It seems to be working better than it was when it was left with the department. Unfortunately, for Wolf Lake, if they were to go into the new process, they would not be able to go to the tribunal because their claim is for a reserve, infrastructure and housing and it is worth well over $7 million.
That claim, fortunately, is in the process now. If they had waited another five years and Bill C-6 had passed, they would be out of luck. They would continue to be a landless band.
I am sorry I could not give you more examples, senator, but that is what I can do.
Senator Adams: Senator Gill mentioned some other areas where your claims include park areas. Does that park belong to the provincial government or Government of Canada?
Mr. Di Gangi: There are several large provincial parks. La Vérendrye wildlife preserve was set up in the 1920s as an exclusive trapping ground for the Algonquins, because of the lack of land base and the economic hardships they were experiencing. In 1940, the province put a highway through the middle and declared it a park preserve for tourists, moose hunting and fishing, which devastated the economy of the community.
There is a small national historic site at one end of the territory near the Grand Chief's community. Of course, there is Gatineau Park in the National Capital Region, which is federal. There is a mix of federal and provincial parks in the area.
Senator Adams: I did not really understand why the government rejects some of your claims. Do they have a policy whereby they can reject some of your claims? Do they just stop or say you did it wrong. Why were the claims rejected?
Mr. Di Gangi: You submit a claim with your evidence and you must demonstrate that there is a lawful obligation based on the specific claims policy. The government takes a look. They send it to their historical analysts, who do an assessment and then send it to the Department of Justice. The Department of Justice makes its determination as to whether it fits within the criteria, whether there is a lawful obligation that has been established, et cetera. They then provide that advice to the minister. He can accept or reject the claim based on that advice.
In the case of Wolf Lake, the minister rejected the claim because he said he was not given enough evidence to show that the government was lawfully obligated to give them a reserve. When the treaties were signed in the Prairies, the government was obligated to set aside reserves for each band. Those kinds of treaties do not exist in Quebec. It was more a matter of government policy to establish reserves for the communities. They took the easy way out and said, ``There is no treaty so we do not have to give you a reserve, so tough,'' basically.
We had two choices: We could prepare more evidence and re-submit it to the Department of Justice, or we could take it the commission and hope that we would have a referee who would provide us with a fair hearing. So far, that has proven to be the wiser decision.
Senator Adams: If I the minister were to say, ``You tried to do a good job. You made a few mistakes and I must reject your claim. Yet, I will giver you all my advisers here in the department and perhaps they will give you a better claim.'' Could the minister do that? No way.
Senator Léger: The whole country has to know what is going on here. We have seen many witnesses; we are the only ones who have been lucky enough to have heard you. I know this is an ideal.
The time has come. All of the people in the government have to listen' they have to hear. Everything you said about signing cards, I jump up too.
According to what I see here, the Aboriginals want to start to work together with us, not just us with them. We would have common results and the whole country would be together.
I really feel terribly positive about all these meetings. I am just so sorry that there are so many empty chairs. C'est la vie. There are other things and everybody is running everywhere.
To advance together, that is my wish.
The Chairman: I have one comment.
When we were doing our study with an action plan for change on urban Aboriginal people, focusing on youth, we heard from some organizations in Quebec. I was absolutely appalled at how the Aboriginal people are treated in Quebec, according to those presentations.
You have just reaffirmed exactly what we heard in our other committee meetings. It makes me wonder where the leadership has been on both sides — the government side and the Aboriginal side. I think the time is right now. We have better educated people in our communities. We have people who are not afraid to speak out. We do not have to worry about the language barrier because we all speak either French or English.
I think the time is right now for us to start dealing in a partnership.
The time is short; this is the beginning. The negotiations are strong, and all I can say is I am so happy to be in the Senate where, possibly, we can make a difference.
Thank you both very much for coming. I appreciate it.
The committee adjourned.