Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 17 - Evidence of June 3, 2003
OTTAWA, Tuesday, June 3, 2003
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-6, to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts, met this day at 9:08 a.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Good morning. Today, we will hear from Chief Chris Shade and Will Long Time Squirell of the Blood Tribe/Kainaiwa Tribal Government. Welcome, gentlemen. Chief Shade, please proceed.
Chief Chris Shade, Blood Tribe/Kainaiwa Tribal Government: It is a privilege to be here. We thank the Standing Senate Committee on Aboriginal Peoples for allowing us the opportunity to address our concerns and position on Bill C-6.
In the package we handed out there is an executive summary. I will read through that and then I will leave the more detailed information with the committee.
The Blood Tribe/Kainaiwa is located in southern Alberta on the Blood Indian Reserve and has a population of 9400 members. The reserve is 2,000 square kilometres, with agriculture as its primary industry. The Blood Tribe operates and manages its own education, health, corrections, policing and other facilities.
We have enacted financial, election, and membership codes legislation that refers to and incorporate our Elders' declaration, Kainaysinni, which defines who we are, our territory, our governing system, our source of authority and our relationship to the land and to our fellow man.
The Blood Tribe participated in Treaty 7 in 1877. The treaty is considered to be a solemn and binding undertaking existing in perpetuity. Treaty 7 is the foundation of our relationship with Canada and it has created a unique relationship between our people and the Crown, modifying only one aspect of our inherent rights: the right to exclusive use of our land.
The Blood Tribe has existed as a nation since time immemorial and we have continuously controlled our lands and our religious, political, economic and cultural destinies. The European settlement radically altered the life of the Blood Tribe and gave rise to the treaty process that resulted in a number of promises, including the promise by the Crown that our reserve lands could not be taken without our consent.
We have honoured the agreement. We made Treaty 7. We have kept peace and we have shared our lands with the newcomers. Canada, however, has not done that. Rather than honouring its promises, it has imposed the foreign laws that eroded our independence and undermined our inherent authority. Yet, in spite of the constant attack on the validity of our life systems and the attempts to eradicate us as a people, we have survived. We are still engaged in the struggle to preserve for our future generations the fundamental values, principles, rights and freedoms that are necessary for us to remain a distinct and unique people.
We regard Treaty 7 as the foundation of our relationship with Canada. Canadian law also characterizes the relationship between First Nations and the Crown as fiduciary in nature. Therefore, in addition to our treaty relationship, we also have a fiduciary relationship with Canada. As a result of that relationship with the Crown as the fiduciary and the Blood Tribe as beneficiary, the Crown has certain fiduciary obligations toward us.
The treaty and fiduciary relationships provide guidelines on how our relationship is to be governed. Canada is required to honour its treaty promises while ensuring that its fiduciary obligation to behave toward us with the utmost good faith and act to protect our interests is met. Canada is required to act in our best interests when it proposes and creates legislation pursuant to its exclusive constitutional authority to legislate with respect to Indians and lands reserved for the Indians.
The Minister of Indian Affairs has not acted in our best interests in proposing Bill C-6. The proposed legislation favours Canada's interests over ours, which violates the legal standard to which Canada is held in its dealings with First Nations.
Bill C-6 is stated to be ``an Act 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.'' The federal government also states that the bill will modify the current specific claims process through the creation of new administrative bodies to facilitate claims negotiation and dispute resolution and to make binding decisions on the validity of the claims and compensation awards.
We agree that Bill C-6 will modify the existing process, but strongly assert that this modification is not an improvement. In fact, it is more detrimental to First Nations than the current process, as it is simply legislates the protection of Canada's interests in violation of the treaty relationship and the fiduciary relationship.
In reviewing Bill C-6, and its potential impact on the Blood Tribe, we have considered our fundamental values, principles, rights and freedoms and our long history and the realities of today's world. In our submission, we have attempted to provide the Senate committee with an overview of the size and complexity of the Blood Tribe, our lands and economic, social, cultural and political structures.
As stated, the foundation of the Blood Tribe's relationship with Canada is based on the legally binding treaty relationship. The leadership of the Blood Tribe have a clear mandate and directive from the members of the Blood Tribe to ensure that the spirit and intent of Treaty 7 be fulfilled and protected.
The Blood Tribe also has a fiduciary relationship with Canada that obliges it to act in and protect our best interests. Our leadership must also ensure that Canada meets this obligation.
The Blood Tribe has significant concerns with Bill C-6, which we have set out in greater detail in our submission. We highlight the following issues for your consideration.
First, a nation-to-nation relationship evidenced in the treaties constitutes the basis for creating a new process for the resolution of specific claims. The creation of a new process must actively involve First Nations so that there is, in fact and practice, equity and fairness for First Nations with respect to the resolution of their specific claims. It is unconscionable for Canada to propose legislation that only modifies the current process to its own benefit and to the greater detriment of First Nations. To do this violates the treaty relationship between the parties.
Second, the fiduciary nature of the relationship between First Nations and the Crown also governs the creation of a new process for the resolution of specific claims. In creating a new process, Canada is required to ensure that it is, in fact and practice, an improvement over the existing process and that it is in their best interests of First Nations. Bill C-6 serves to protect the best interests of Canada to the greater detriment of First Nations. This also violates the fiduciary relationship and breaches Canada's fiduciary obligations owed to First Nations.
We set out our recommendations on Bill C-6 to the Senate committee as follows:
With respect to the lack of independence and impartiality, Bill C-6 must establish a truly independent and impartial body to resolve specific claims and such body must not only be seen to be independent and impartial, it must be so in fact. To accomplish this, the involvement of First Nations is required.
The minister must be required to consult with First Nations in making a determination of members to be appointed to the commission and tribunal. The determination of members must be a joint effort between the minister and First Nations and only on mutual consent of both parties shall a recommendation be made to the federal cabinet for the appointment of such members.
In respect of procedural unfairness, Bill C-6 must set out a very definite and reasonable timeline by which the minister must make a decision on whether to negotiate a claim. He should not be granted an open-ended timeline that affords him the opportunity to stall the process even further. A definite timeline places on the minister the obligation to consider claim submissions in a bona fide and timely manner, which would accord with the imported intent of the legislation.
Bill C-6 must not set out a monetary limit on the claims that go to the tribunal, for to do so negatively affects First Nations in that they would have no alternative but to litigate their claims that are over $7 million. Bill C-6 must not be dedicated solely by the fiscal realities of Canada. It must consider the fiscal realities of First Nations and increase the annual budgets so that claims can actually have a chance of being resolved equitably and in a timely manner.
On the parliamentary committee hearings, specific claims are held and pursued by individual First Nations. The federal government, therefore, has a legal obligation to not only honour the treaty and fiduciary relationship, but also a legal obligation to ensure that meaningful consultations are engaged with individual First Nations. The parliamentary committee failed to honour these obligations. The Blood Tribe recommends that the Senate conduct a special study on Bill C-6 to determine its impacts on First Nations as we have outlined above and also to determine whether Canada has met its legal obligation to ensure that consultation with the First Nations has been meaningful.
I would like to welcome the delegates from the Tsuu T'ina Nation. Before we begin asking questions, I would like to recognize the delegation and hear their presentation. Then the committee will be asking questions.
Mr. Jim Big Plume, Lands and Treaty Researcher, Tsuu T'ina Nation: Good morning, senators, I am James Big Plume, Lands and Treaty Research Director for Tsuu T'ina Nation.
[Witness speaks in native language.] It is a nice day outside. I hope that you have our presentation before you. It was forwarded to the clerk.
Senator Chalifoux and honourable senators, on behalf of Tsuu T'ina Nation, I express our gratitude for having the opportunity to appear before your committee and share with you our views and concerns regarding Bill C-6. With me today are Ron Maurice, legal counsel for Tsuu T'ina Nation claims, Stanley Big Plume, councillor for Tsuu T'ina Nation, and Gilbert Crowchild, councillor and chairman of the Specific Claims Board for the Tsuu T'ina Nation. As manager and director of land claims and treaty research for the Tsuu T'ina Nation, I would like to share with you our experience with the claims process to illustrate the problems with the current specific claims policy. I will also share what we think needs to be done to provide for the effective resolution of our legitimate grievances against the Crown.
By way of background, the Tsuu T'ina Nation is party to Treaty 7 and is a part of the Blackfoot Confederacy in southern Alberta. We are surrounded on three sides of our reserve, which occupies an area of three townships, by the City of Calgary. Given our close proximity to such a large urban centre, our nation has been under consistent, extraordinary pressure since at least the 1880s to surrender and sell our land so that it could be opened for non-Indian settlement. In fact, just last week, a land developer attempted to by-pass the authority of our chief and council by offering a bribe of $80,000 to every man, woman and child to construct a freeway across our lands. Considering our proximity to the City of Calgary, we have always been recognized as being the final leg to the City of Calgary's Ring Road agenda. Our lands have been recognized as retarding the development of the City of Calgary. We do not see it from that point of view. It is ironic that such tactics are still being used to today in an effort to secure our lands and divest us of our treaty rights, but, as the saying goes, ``the more things change, the more they stay the same.'' So it is with this bill.
The Tsuu T'ina Nation alone has several specific claims, all of which assert that the Crown violated the terms of Treaty 7 and breached its fiduciary duty to protect our lands and resources for Tsuu T'ina Nation. Over the course of the last 30 years, since the specific claims policy was implemented, we have been able to settle only one small claim related to the illegal taking and use of our reserve lands for irrigation purposes. This particular claim was found to lack the proper authorization for surrender of lands, and the lands utilized were supposed to promote irrigation on Tsuu T'ina. It was noted that during the negotiations of this particular claim, recognized as the Calgary Irrigation Company claim, that there was never any compensation paid to the Tsuu T'ina. The remainder of our claims are either still being researched or are being bogged down in the current process.
Two of our claims warrant special mention. First, there is the 1913 surrender of 1173 acres of land based on the Crown's promise that it would be sold for a minimum of $150,000. Instead of selling the land for the minimum price, it was leased to the Department of National Defence for less than what it was worth. Even worse, this prime real estate, located on the edge of the city, was destroyed because it was used for military training and as a weapons range. Despite persistent efforts to clean up the mess that was left behind, we are still working with the Department of National Defence to remove unexploded ordnance and environmental contamination from our lands. In respect of this particular instance, I want to note on a personal basis that my grandmother, my aunt and two of my cousins were blown up by a grenade. They were never compensated. Two of the participants to that occasion are still with us today, thankfully.
The second claim relates to the 1931 surrender and sale of 593 acres to the City of Calgary for the development of the Glenmore Reservoir. The Glenmore Reservoir has been noted publicly as furnishing the City of Calgary with at least 80 per cent of its water supply. The claim was submitted in 1996 and in 1999, and we provided extensive supplemental submissions to the Department of Justice in an effort to expedite their legal review. Although the Department of Indian and Northern Affairs promised to inform us by the summer of 2002 whether the claim would be accepted for negotiations, that date came and went and we are still waiting for a response from both the Department of Indian Affairs and Northern Development and the Department of Justice. As an added note, the Glenmore Reservoir, sits adjacent to the former Department of National Defence leased lands and it is currently in the way of further progress for Tsuu T'ina Nation to work cooperatively with the City of Calgary for the development of their Ring Road.
This delay is unacceptable. However, under the current process, there is little, if anything, that we can do about it. This process is patently unfair. First, we have to show all of our cards and disclose our entire case in an effort to satisfy the Department of Justice that our claim is valid. The lawyer from the Department of Justice is in an in inherent conflict of interest because he or she sits as the judge, jury and defendant on claims made against the Crown. It is hardly surprising that when a claim is rejected, the First Nation will have difficulties with the Department of Justice's determination because it is based on one party's narrow and partisan view of law and facts. Unlike a court, the Department of Justice does not disclose the reasons for its decisions; it cites solicitor-client privilege.
Furthermore, if the claim is rejected, there is no effective appeal mechanism for such decisions. The claim could be referred to the Indian Claims Commission for an inquiry and report, but experience has shown that the Crown often ignores its decisions with impunity, even though the commission's reports are impartial, thorough and well-researched. Nor is there any neutral body with the power to compel the Crown to respond within a reasonable period of time. In the end, we are left in the unenviable position of having to wait indefinitely to see if the Crown eventually accepts the claim for negotiation, or we are forced to go to court.
Waiting for a response to our claims could take many years, and in the interim we continue to lose our Elders, who are recognized as our encyclopaedias, our dictionaries, our historians. It is tragic that many of our Elders will never see the day when our history is vindicated and justice is done for the Crown's breaches of its obligations to our ancestors.
This injustice is compounded by the fact that we have lost important evidence and aspects of our oral history and tradition, setting out the First Nation's account of how we lost our lands. On another personal note, most recently, last week, we lost another grandmother, Lucie Big Plume, and another aunt, Clarabelle Pipe Stem, who were recognized as strong and knowledgeable Elders of all Tsuu T'ina history.
Although the backlog of claims continues to grow, the Crown has not allocated the necessary financial and human resources to address this backlog. Something has to give; something has to be done. It is against this backdrop that the joint task force set out to develop a new process to expedite the fair and just resolution of our claims. Over the last several weeks, you have heard from many witnesses who maintain that Bill C-6 does not reflect the hard work and joint recommendations of the First Nations and government representatives involved in that process. We feel obliged to join with the rest of the First Nations who oppose Bill C-6.
With that, I would call upon Ron Maurice, legal counsel for Tsuu T'ina, to make a few comments.
Mr. Ron Maurice, Legal Counsel, Tsuu T'ina Nation: It is an honour to be here before you today. I would like to highlight what we perceive as a few of the key problems with the bill that is before you. Please feel free to interject at any point, if you would like clarity on anything. I would very much prefer dialogue to the boring monologue that I am about to recite.
The Chairman: Mr. Maurice, if it suits you, we will hear your presentation and proceed to questions afterward. Please proceed with the highlights of what you feel, as legal counsel, is important. We have heard from the Blood Tribe and so we will move to questions in about 10 minutes.
Mr. Maurice: Over the last 12 years, I have been involved in a number of claims in my capacity as legal counsel for the Indian Claims Commission. I have seen the profound need for an independent and binding institution that would complement a commission that can provide the softer forms of dispute resolution. That would assist the concerned parties to resolve dispute without having a tribunal that can make binding decisions and break impasses on every issue in dispute — not just the issue of liability in the Crown's responsibilities, but also issues with respect to compensation. Without that kind of check and balance, the negotiation process does not function as effectively. When there are no risks or consequences for delay, then one party invariably has too much control in that process.
Bill C-6 was at least intended to address, from the outset. The joint task force, JTF, worked extremely hard to address that major shortcoming by offering recommendations to government that would have provided for the resolution of all these claims, and would have had every claim — large and small — dealt with in the same fashion. Unfortunately, that process has not gone far enough to address the fundamental problems with the existing claims process.
I wanted to make a key analogy by drawing your attention to the nature of the rights that we are talking about. It is important to underscore that we are talking about the legal Constitutional rights of First Nations that are recognized under section 35(1) of the Constitution Act, 1982. It is important to bear in mind that the Indian Commission of Ontario underscored this point in a 1994 report entitled ``Indian Negotiations in Ontario: Making the Process Work.'' It was reported that resolving land claims is not a matter of according special privileges to Aboriginal peoples but that it involves the application of basic Canadian legal principles.
If you accept that the policy deals with the lawful obligations of the Crown and that our Constitution — our entire democratic system and legal and political institutions — is premised on the notion of the supremacy of Parliament and the rule of law, then it would follow that the Crown has a special responsibility to uphold and respect those rights and to put in place effective mechanisms for the enforcement of those rights. This should be oriented around that and the primary focus should be on the ability of First Nations to access appropriate institutions to ensure that justice is done. That is truly the key.
Drawing that analogy to human rights — which is apt in this case — if you take Aboriginal and treaty rights as paramount, then it is odd that the government has not created institutions that would give First Nations adequate access to the justice system to enforce their constitutional rights. This lies in sharp contrast with the Canadian Human Rights Act, which provides for a commission and a tribunal with broad powers to investigate allegations of discriminatory practices and to make broad remedial decisions on situations where the Crown, or any other party for that matter, has violated those rights that we hold as fundamental.
Take, for example, the 1998 decision of the Human Rights Tribunal that held that there was an inequality of practice with respect to pay equity for women in the public service. In that case, a tribunal determined that the Crown was obligated to pay compensation for women because of substandard pay. In that case, no one would ever raise questions about the propriety of that and the necessity of having a tribunal to determine those issues. However, issues relating to Aboriginal claims have to be managed within an appropriate fiscal envelope. This is fundamentally prejudicial, discriminatory and backward. It simply will not help to resolve the problems.
If you accept that we are bound by the rule of law, then we need to have institutions that provide adequate access to justice. One of the key concerns that a number of people have raised over the course of the last several weeks relates to the $7 million cap. In my view, that will create — after much hullabaloo and expense — a small claims court for Aboriginal land claims. I do not believe that the expense at the end of the day will have justified dealing with these kinds of claims that are under $7 million. There is already enough impetus to settle those claims individually.
In fact, we have heard from some of the commentators that have come forward — and the government has presented evidence to support this — that the majority of claims are less than $7 million. Well, the majority of claims settled to date are less than $7 million. That simply shows that it is easier to clear out the clutter and resolve the smaller issues because they present less pressure on your allocation of your annual budget.
When it comes to tackling the larger issues, we have a true need for an independent and impartial body with the power to make binding decisions, to hold the parties to reasonable timelines and to make orders for costs where timelines are not met. Those are the kinds of tools that an independent claims tribunal would use effectively to provide some rigor in this process and to provide for the efficient resolution of many of these claims.
I would like to speak to the institutionalization of the ``validation'' process, which may not be highlighted in the joint task force materials. In this process, claims are dealt with in two stages: First, you have to satisfy the Government of Canada that the claim, on a balance of probabilities, discloses a lawful obligation. You do not get over that hump until you have shown enough proof to declare that it is a valid claim. That puts the Department of Justice in such a position that they become judge, jury and defendant at the same time.
It also creates a problem at the negotiation table. The claim has been accepted based on the high threshold of the department's narrower view of the criteria and what constitutes a lawful obligation. First Nations are then asked to compromise in the negotiation of compensation. That removes the give and take in the dynamic of the negotiation process and puts too much control in one party's hands. That concerns me.
In a better process, a tribunal would make those binding decisions and would encourage the parties to resolve every claim through negotiations. The First Nations could submit the claim and a commission could provide independent research to try to provide some efficiencies and economies of scale. A commission that could offer mediation services to the parties to try to work through the issues would be a productive and forward-looking approach in this bill. That component is a very good idea.
Having said that, the process would work far better if that tribunal were in place to make binding decisions on liability and compensation if the parties are unable to come to terms. One need only look at the experience that ordinary litigants have every day in court. Invariably, the vast majority of actions filed in the courts are resolved because the parties know they are moving forward towards a trial date. It is that trial date that provides the impetus for good faith negotiations. With the assistance of able mediators and facilitators, it will be much easier to find that common ground.
However, as soon as there is a risk assessment by both parties, you would see most parties trying to find a win-win solution instead of the usual winner take all. I am afraid this process might entrench that as opposed to providing opportunities for the parties to resolve these types of issues.
I do want to add something that relates to the issue of independence. I share the criticism of this bill because it does depart from the principle that the AFN and Canada joint task force embraced. I was at that table and I am familiar with what was discussed. It was very clear from those discussions that there should be some form of a joint appointment process. Not one that runs afoul of the prerogative of the Crown, but at least a nomination process where there could be screening undertaken by both First Nations and Canada to ensure that candidates are qualified, impartial and that they are perceived as impartial. Those are important qualifications for anyone who will hold this important responsibility. Ultimately, that list of nominees could go up to the minister and up to the Prime Minister for a decision on appointment to those positions.
That is an important issue that needs to be addressed in this bill. Otherwise, it will lack legitimacy and a sense of impartiality that First Nations would look to build to have an effective dispute resolution body. If the process is too one-sided and if it looks like a situation where the government could stack the deck, that body will be viewed with suspicion, which would be unfortunate. Minor tweaking to this bill could accommodate that interest handily.
Those are my comments. Thank you very much. If there are any questions, I would be pleased to respond.
Senator Austin: Gentlemen, thank you for your presentations this morning. I believe that each of them has focused very specifically on the issues that are before our committee.
Let me explain my version of the role of the Senate in dealing with this legislation. The government has proposed this legislation. The Senate has created this committee of the Senate because the Senate sees itself as having a very special responsibility in the area of Aboriginal peoples and Aboriginal affairs. We have developed, I hope, some expertise over time during the existence of this particular committee.
The points made this morning are not unfamiliar to us. I want to thank, in particular, Ron Maurice for a very thorough analysis of the issues in the bill.
Having said that, I would like to explore some issues with you. As you know, we have been presented with a bill that the government feels is an advance on the existing situation. As our chairman has said, our committee has decided that we would like to propose some amendments to the government. We are considering the nature and shape of those amendments. They will be along the lines of submissions that we have received. They are probably not exciting to either side in terms of the debate, but our hope is that they provide some improvement.
Have you been reasonably satisfied with the Indian Claims Commission process that was set up Order in Council a very long time ago? Would you be happy to continue with the Indian Claims Commission for several years if this legislation is not passed or is this marginally an advance that can found the basis for a further advance? Where you strategically on that question?
Mr. Shade: The Blood Tribe has seen the workings of the Indian Claims Commission process. It has worked for us for small claims. The claims were for less than $7 million. It was a long process.
I sat on the chiefs' committee on claims as part of the joint task force. One of the driving forces in trying to get this was the conflict of interest that arose from the minister's office in reviewing each claim that came forward — especially the bigger claims. For that reason, it was important to ensure that impartiality of a tribunal appointment process was undertaken. We were able to accomplish that as part of the AFN.
The document that we submitted to the minister's office came back as a different document. You have probably already heard that. Their people sat at the table with us to design the particular document that originally went to the department.
An independent tribunal is very important to us. The minister, with all due respect, continually announces that this bill will create a more expedient process. It will not create that. It will only further slow it down as we have pointed out in our submission.
Senator Austin: I will address two points that you have made. First, the joint task force was set up to try to improve the ICC situation. It did not have the power to cut a deal between the two sides. It was a joint task force that was recommending something that they had concluded to the AFN on the one side and to the minister on the other. Is that correct?
Mr. Shade: When the joint task force report was submitted, it was reported to an assembly of chiefs from across Canada. It was approved and adopted at that time from the First Nations side.
Senator Austin: Another step was required for approval. The people on the task force did not have the authority to cut the deal. It had to go to another supervisory authority.
Mr. Shade: We wanted to review it as equal partners in negotiating a new process.
Senator Austin: You could have rejected it if there were something in it that you did not like.
Mr. Shade: We did reject Bill C-6.
Senator Austin: No. You could have rejected the joint task force report if you did not like it.
Mr. Shade: We liked it.
Senator Austin: Had you not like it, you could have rejected it.
Mr. Shade: Yes, we could have.
Senator Austin: When the government people took it to their senior people, they got into politics of another kind entirely. The government, at the ministerial level, would not accept the joint task force report without the changes we see in Bill C-6.
Mr. Shade: Correct.
Senator Austin: Essentially, two sides were negotiating. One side liked it; one side did not. That side came back with another version and said to you, ``will you buy this?'' That is where we are today.
Mr. Shade: In our brief, we have laid out why we think we were done wrong. There is a fiduciary duty of the minister's office to ensure that we are heard in a meaningful way.
Senator Austin: I understand that. The second point that I wanted to develop, as a result of Mr. Maurice's arguments, is that conceptually we have to distinguish between two processes. One is called ``negotiation,'' and one is called ``settlement'' in the rule of law court system. The two concepts cannot be blurred. A negotiation is something each side enters into in a trade-off of ideas and agreements and non-agreements and so on. The other process is an allegedly objective determination by an impartial body.
What we have in ICC and what we have in this bill still is not a specific Indian claims court with an impartial tribunal — although in this case, you do have the tribunal with the $7 million cap. However, you still have a negotiation going on and the Crown defining the way in which it wants to negotiate. That is the private sector model. You may well be right — and I tend to think you are — that there should be a more impartial process than the one that the Crown has adopted up until now. However, this committee is in the position of having to make a decision whether to say this bill is unacceptable or to say that with changes, this bill is, if not perfect, at least a better state of affairs than the ICC itself.
I take it that your position is that you would like to go return to the discussion stage again. You think that, for some reason, you can go further with the Crown by going back to discussions than you can by suggesting we do this and then go from this stage into a third stage system that is closer to what you would like to see.
Mr. Shade: We have reviewed the document and different solicitors have come forward with different opinions on it. A lot of good work put into the present document, but there are just a few changes or few amendments. If they were to be done, I think we would be able to work with it.
They are: total independence and impartiality and the validation process that has been done with a maximum of $7 million — the cap problem. In the original submission, it was $5 million. When First Nations came in with a claim, they do not have to sign off a waiver. With this present document, once they go into this, they have to sign a waiver that they will not go after a bigger claim if it does not meet their expectations. That kind of limits some of our lateral movements.
Senator Austin: That is a valid criticism of this legislation, absolutely. What I am looking for — and what I believe my colleagues would be looking for — is where we should go given the limitations.
I am hearing you say that if we could improve the consultation process; if we deal with the cap; if we could deal with the impartiality issue, then we would be addressing some of your concerns in an important way.
Mr. Shade: Right.
Senator Tkachuk: Could I ask a supplementary question on that cap? Are you advocating no cap? What is the number you recommend? Is there a number you think would be a better cap?
Mr. Shade: We had originally thought of a figure higher than $5 million. They conceded and raised it to $7 million. However, there was the stipulation that a First Nation had to sign off and say, ``Once you are on this track, you stay on this track, and you have to accept $7 million.'' The original submission stated that you can use this process to validate your claim and then you can sit down with the minister's office, specific claims and negotiate a settlement.
Senator Tkachuk: Over the cap?
Mr. Shade: Yes.
Senator Austin: When you talk about consultation, one of the issues that we have to look at is with whom. If the minister is required legislatively to consult, is it the AFN you want him to consult with on your behalf? Do you want him to consult with you on the appointment, you and other claimants? One category would be the minister would ask everyone who has an accepted claim to respond to proposals with respect to appointments. Can the AFN speak for you and you are satisfied?
Mr. Shade: We want to have a meaningful consultation process. The minister did not go across the country and attempt to consult with First Nations. I am saying that they should have conducted a meaningful consultation process. If not by region, if not by treaty, at least there should be something going across the country.
Senator Austin: That is my point. In Bill C-6, if he is about to appoint the tribunal, should he be asking the AFN — and only the AFN — on behalf of any group who might want to make a claim? Alternatively, should he, as is proposed in Bill C-7, consult with everyone who is in the claims process?
With today's technology, it is very easy to do that. You can say, ``Okay, 120 bands have made claims that we are negotiating, or supposed to be negotiating. We will ask 120 bands to give us their suggestions, and then we will take them from there.'' You can do that with the AFN, or you can only go to the AFN. What is the consultation community that you would recommend?
Mr. Shade: From Blood Tribe's point of view, I would like to see them consult with us and any other tribe that has a claim. We have a claim in the works. It has been there since the 1970s. I am sure there are other tribes or First Nations that have long outstanding claims.
Senator Sibbeston: Chairman, I want to make a comment. I appreciate the stance that the witnesses have taken. I certainly agree with most of the statements that have been made. I come from a region of the country — the Northwest Territories — where there is respect and where there are First Nations and Aboriginal peoples involved in government and all aspects of our northern society. Over the years, the dealings between Aboriginal people and governments have become an honourable and respectful process. I feel fortunate to come from a part of the country where there is that situation.
As I looked at how Bill C-6 came to us, the federal government was right in setting up a joint task force, but something went wrong. I am incensed with the federal government for creating an expectation in First Nations that the process that they undertook — the joint task force — would end up in a good solution for Canada and the First Nations. Clearly, there were expectations on the part of the First Nations that whatever was done in the joint task force would be what was eventually promoted by the federal government in this bill. Obviously, something went wrong.
When I see what occurred in the joint task force and what eventually came out of the department, I see a total lack of respect on the part of the federal government in its dealings with First Nations. It makes me angry that in our wonderful country, relations are proceeding like this. I understand your concern and the stand that you have taken on this bill that it is not good and that we should start over.
The Senate is responsible for considering such bills with solid, sober second thought. However, I am not sure that I would say that I have a mandate to thwart the democratic process. The members of the House of Commons are elected and we are not. Our role is to give all matters the benefit of sober second thought and to represent Aboriginal peoples, the regions and minorities in the country. We will do this to our best ability.
I have thought about all of this. It is essential that we create a body that is fair and impartial. That is what everything is about in this process — to create a body that will adjudicate fairly and impartially. I have advanced some amendments that I think will help and I hope the committee will be responsive to some of them. All senators present today are sympathetic and have progressed to an understanding of the position of the First Nations. There is a desire to improve the bill — not to thwart or stop it — and to amend it and thus improve it. That is our role. Some amendments are being considered by senators to deal with the appointment.
I feel that First Nations should have a say in the appointments. If it is to be a fair body, representing the Crown and First Nations, then it ought to have appointment provisions for both parties.
On the matter of independence, I had the good experience of being involved with a human rights tribunal for some years before I became a senator. I know the progress that has been made. The issue relates to whether tribunals are independent and the courts have gone a long way to ensure that they are because it is essential to the process.
Access to tribunals without waiving the $7 million limit, timelines and a non-derogation clause are the areas on which I have focused for my proposed amendments. If agreed upon, those amendments would improve this bill substantially.
I am certainly sympathetic and conscious of the stand you have taken. With all our efforts, we can work together to improve the bill.
[Translation]
Senator Gill: I would like to address two issues which have already been discussed. The first one concerns the role of the Senate. We have different conceptions about what the role of the Senate might be. The goal of this committee is to help native groups as much as possible. However, I do not think that we should speak on behalf of groups and chiefs elected by native people.
In your capacity as representatives of first nations, you probably expect the Senate to represent your point of view on native issues. I agree with that. Indeed, we have been appointed to reflect the points raised, concerns expressed and grievances made by native people.
Now to my second point. When the Joint Committee on Aboriginal Peoples held its hearings, I was the chief, or commissioner, for territorial claims. First nations aboriginal leaders have always wanted to speak directly with the Minister of Indian Affairs. But since the minister is extremely busy, he sends his representatives or officials to speak with the chiefs. The chiefs have always wanted to deal directly with the representatives or elected officials of the federal or provincial governments, but that never happened.
First nations feel that when they deal with the Minister of Indian Affairs, they have to do so through officials who represent the views, objectives and the mandate of the Minister of Indian Affairs.
It has been claimed that the minister can disassociate himself from the recommendations made by the joint committee. So be it! However, senior officials must reflect the views of the minister and the recommendations represent the mandate of the minister. What do you think of this?
[English]
Mr. Maurice: I will try to respond to those issues.
I am certain that we all appreciate that the Senate is limited in what it is able to do within its power and authority. Having said that, it is a question of whether the Senate should speak up in good conscience when it has concerns about the efficiency of a bill and whether it will pay due regard to the constitutionally protected rights of First Nations in this country.
That is where I am coming from when I look at this bill. I do not think it goes far enough to address the real issues. If we have human rights tribunals and commissions with full binding powers empowered to tell the government when they have infringed on the Charter of Rights and Freedoms and individual rights of every citizen in this country, then why can we not place First Nations, Aboriginal and treaty rights — which are also protected in the Constitution — on the same footing? The institutions should be parallel and they should reflect that fundamental fairness. I do not think this bill does that.
In terms of the drafting, the process was an effective one. The joint task force was positive and forward-looking. Rather than being the typical position-based negotiation that is seen in almost every land claim negotiation between the First Nations and the government, this was not. It was actually a positive atmosphere. First Nations were led to believe, in the spirit of good faith and accommodation of those competing interests that the Crown had, the give and take, and the unanimity that was ultimately reached on the key recommendations of that bill, that those would see the light of day and that they would be implemented. The scuttlebutt was that the bureaucrats were on side right up to the highest levels and, of course, they had been receiving instructions from the minister all the way along. At least that is what we were led to believe at the table.
However, some people in cabinet and at the senior levels of government could not stomach the concept of giving the tribunal a ``blank cheque'' as they put it. The timing was somewhat awkward. As I mentioned earlier, the 1998 pay equity decision had come down around the same time that the joint task force report was released. That is where the cold feet came from: ``It will cost us too much. We cannot afford to do justice for First Nations. We will have to try to wrap it up into some kind of manageable process.''
We do not have enough time to entertain all the problems with this bill. However, the notion of a fiscal framework and an annual allocation to settle claims where the Government of Canada as negotiator through the Department of Indian Affairs and Northern Development is drawing on it at the same time that the tribunal is supposed to make awards from it is wrong. Who is accountable for the fund? How is it supposed to work? How you can possibly accommodate just the mechanics of how that money would be managed?
The $7 million cap and the requirement to waive an entitlement to compensation in excess of that are both problematic. You will see that in the written presentation we have provided. I am not sure how a First Nation can agree at the outset of a process to relinquish a collective right and entitlement that they might have to compensation without having to go through a fairly detailed legal analysis of what their rights might be. You would need appraisal and compensation studies. It will cost an enormous amount of money to decide whether to waive the right. By the time you are through that exercise, ultimately, if you have a decent claim, you will probably take it to court.
This bill will be used as a mechanism for First Nations to research and get their ducks in a row. Once the claim is prepared, they will be filing claims and pursuing the litigation route by using that subsidized process to help do it.
I return to the role of the senators. Given that process, there was a departure from what every one had thought was a consensual process — a meaningful consultation as Chief Shade said. The expectation was that the bill would be embraced in the fashion that it was, given that they had employed legislative drafters from the Department of Justice to assist in developing the instructions that would ultimately go into the bill. The appropriate thing to do would be to recommend that the parties go back to the table and see if they can work out some of these details. There are a number of fundamental problems. I think the problems can be resolved if the parties are sitting down in a cooperative spirit and working through some of these issues.
The Chairman: I would like to thank each of you. I must apologize to Mr. Crowchild because he was to make a small presentation here but in view of the time, it was not possible. I hope that he understands.
As you can see, our committee is totally engrossed with this bill. We are listening closely to all the presentations. We are finding a commonality in the presentations on the issues regarding this bill. We will be reviewing it in its entirety and looking at some amendments to it.
We have to be prudent in our deliberations. I strongly feel that the Senate is truly a house of sober second thought. I have been chair of the Métis Elders Constitution Commission and the senator for the Métis Nation of Alberta Association. We learned then natural justice. We learned then sober second thought and how to listen to all sides.
I want to thank you all for your very interesting presentations. I appreciate you coming here this morning.
We will invite Mr. Eric Large from Saddle Lake First Nation to give us his presentation.
Mr. Eric J. Large, Counsellor, Saddle Lake First Nation: Honourable senators, I am an elected council member of the Saddle Lake Cree Nation, which is situated in the west central part of Treaty 6 territory of Western Canada. The Saddle Lake Cree Nation is composed of about 8,000 members of the amalgamated bands of Chiefs James Seenum, (Pakan) Little Hunter (Oncctahminahoos) who signed Treaty 6 on September 9, 1876 Fort Pitt. Chiefs Bear's Ears (Muskaquatic) and Blue Quill (Sipitac kwan) adhered to the same treaty shortly thereafter.
Saddle Lake Cree Nation presently has a specific claim that is in the pre-negotiation stage. It also has potential claims to land, resources and other treaty benefits that are presently unresolved as a result of the unfulfilled promises and obligations that Crown representatives committed to our peoples at the 1876 treaty. The honour of the Crown is at stake in dealing with outstanding claims and in the just resolution, settlement and restitution of all treaty claims owing to the Saddle Lake Cree Nation.
I would like to thank you and your committee, Senator Chalifoux, for hearing my presentation on Bill C-6, the Specific Claims Resolution Act. The presentation I am making on behalf of the Saddle Lake Cree Nation is not to be construed, interpreted or translated as consultation in the passage of Bill C-6. I am expressing my First Nation's deep concern with recent developments in the federal government's effort to establish an Independent Claims Body, ICB, to deal with the outstanding specific claims of First Nations in Canada.
Bill C-6, the Specific Claims Resolution Act, was introduced in Parliament in September 2002. The body to be created under the bill has been characterized by the government as a reflection of the model recommended by the First Nation/Canada Joint Task Force on Specific Claims — the JTF — that issued its report in November 1998. The JTF model was truly a product of a joint and cooperative First Nation/Canada effort. It was endorsed by the First Nations of Canada as the preferred model that would stand a realistic chance of fairly resolving claims in an open and expeditious manner. The JTF ICB model was a true independent body, with neither First Nations nor Canada in an advantageous position. If implemented, the JTF model would have a realistic chance to reduce the backlog of claims currently in the system, estimated at over 550.
Due to lack of resources and time for consideration, our brief analysis of Bill C-6 shows that it falls far short of the standards set in the JTF model. We do not believe that the body and process created under the bill would be independent, fair, efficient or effective. In many ways, the bill would create a claims process with significantly less chance to fairly and effectively deal with claims. We truly believe that it would have the effect of increasing the outstanding backlog of claims.
The JTF experience showed us that by working cooperatively on a level playing field, First Nations and Canada can develop policies and processes that can work, with neither player having an advantage and with the primary objective being the attainment of fair and just settlement of legitimate outstanding grievances. We urge the federal government to abandon Bill C-6, and any other unilaterally developed initiatives, and to return to a more cooperative, joint approach to a specific claim resolution policy development.
Fundamentally, the specific claims approach in Bill C-6 is a ``one-size-fits-all'' approach. First Nations are diverse with contrasting needs and diverse historical, legal processes pertaining to land and resources.
Clearly, Bill C-6 violates and infringes upon the international conventions pertaining to lands for Indigenous Peoples, including violation of the Royal Proclamation of 1763, and specifically Treaty 6 of 1876. Integrally linked to Treaty 6, lands and resources are sacred to First Nations, and a sacred covenant has been made by the Crown in Right of Great Britain and Ireland and its successor the Crown in Right of Canada with the First Peoples of this land.
It is a shame that the federal government does not have the foresight and spirit of justice for the resolution of injustices that have plagued and continue to plague the First Nations peoples over the last 500 years. Our elders continue to remind us that so-called ``surrenders'' in the written treaty texts of land and resources, including the loss or allocation of insufficient reserve lands and forced amalgamations with other tribes or bands, were implemented on First Nations peoples with cunning coercion, duress and for the administrative convenience of Indian agents. Bill C-6 seeks to achieve certainty and finality by extinguishing First Nations' interests in making any future legitimate claims of treaty land and resource rights, as well as all other related claims.
While Bill C-6 changes criteria for settling legitimate claims by narrowing the definition of land claims to claims only of land arising out of a treaty, it omits claims pertaining to other treaty benefits. These other benefits, though not limited to the following, are: access to traditional areas; trust accounts; ammunition; snare wire and nets so that the Indian people could continue their avocations of hunting, trapping and fishing; not to mention the promise of seed grain, agricultural tools and implements and livestock to enable the Indian people to embark on a new means of livelihood in the face of the diminishing or disappearance of their traditional food sources.
Bill C-6 is a violation of the 1982 Constitution Act, section 35. Our concern regarding the passage of this legislation are the many constitutional court challenges. Supreme Court decisions are being ruled increasingly in favour of First Nations. Among other considerations, the Supreme Court, in Delgamuuk, 1997, requires the federal government to negotiate in good faith with First Nations regarding their substantive rights. The current legislation being considered by the House and Senate, if it does not involve the informed consent of First Nations and is proclaimed, may invite more legal challenges, which will be costly, time-consuming and create more animosity between First Nations and the federal government.
A whole range of questions related to Bill C-6 and its potential impact on all First Nations remain to be addressed. Please refer to the attached sample questions.
We First Nations are underfunded and under-compensated in the restitution of our indigenous lands and way of life. We cannot afford the legal challenges. I appeal to you, honourable senators of Canada, as I express my concerns on behalf of my people, to advocate and facilitate a just and ethical process that was mapped out in the Penner report of 1983 and the Royal Commission on Aboriginal Peoples report of 1996. Saddle Lake Cree Nation cannot support Bill C-6 in its current form. However, we want to move forward in the spirit and intent of Treaty 6 and as true partners in Confederation.
The Chairman: It was an interesting presentation and we appreciate it very much. Is this bill better, the same, or worse than what is presently being practised in the Indian Claims Commission?
Mr. Large: It limits any claim to a cap of $7 million in this instance. There are potentially other claims beyond that cap. There are other reasons why it is not really an improvement. The impartiality is something we question. All the appointments will be made by the Governor in Council on the recommendation of the minister.
We are also questioning the backlog or the efficiency and settling of claims. I mentioned there are about 550 outstanding claims. If only five or six are being settled each year, as has been the practice, it will take about 100 years to settle these. There are other potential claims as well.
I cannot be sure whether it would be better until it comes into force. I am saying that rather than make another body, at great cost, it is incumbent on the Crown and the federal government to live up to its treaty commitments.
The Chairman: You have similar concerns to those of the other presenters on this bill. Our clerk has a copy of your presentation. As long as he has a copy of it, we will be taking it into consideration.
We will now hear from our Saskatchewan group. Good morning, ladies and gentlemen. Welcome to the Aboriginal room of the Senate of Canada. It is a very special room, and everybody realizes that. There is good dialogue. I would like to welcome each and every one of you who has travelled so long. I live in northern Alberta, so I know that it is a bit of a trip.
First, I would like to ask both chiefs if they would like to make a presentation. We can begin with you, Chief Head, after which we will hear from Chief Cook.
Chief Marcel Head, Shoal Lake Cree Nation, Prince Albert Grand Council: Honourable senators, this is a great privilege. I thank you for giving us opportunity to give our presentation here this morning.
First, we take the same position as the last presenter: We need to review this. We do not consider this as a consultation with our First Nations, in particular the people that we represent. We take a similar stand this morning.
I would like to introduce our group. We have the executive director of the Prince Albert Grand Council, Al Ducharme; Colleen Youngs, our research technician; Charles Whitecap, the governance technician for Prince Albert Grand Council; and Chief Harry Cook of the Lac La Ronge Indian Band.
Our belief is that First Nations were once free and sovereign. We had wealth, health, working forms of government, and other accompanying forms of self-rule. Everything was intimately tied to our lands and resources.
Today, our First Nations are expected to be satisfied with our reserve lands. We sit back today watching the provinces and Canada reaping the benefits from the land and the resources. We were forced to watch Saskatchewan do the same before and after the 1930 Natural Resources Transfer Agreement, NRTA. The wealth from the land that we initially shared with the white man was no longer ours to share when the white man began to claim exclusive rights and to reap the benefits.
Billions have been exploited from the resources and billions continue to be exploited. We ask about the fairness of the process of Bill C-6. Are we being fair in our desire to seek a share of the resources from the land? In our view, fairness is being defined by the federal government and by the provincial governments on behalf of First Nations. In all cases, the definition of ``fairness'' favours the governments of Canada and the provinces.
Bill C-6 is yet another example of asking First Nations to accept the position of impossible compromise. The Prince Albert Grand Council consists of 12 First Nations, 26 communities and more than 30,000 members in the Northeastern part of Saskatchewan. We cover one-third of the geographical area of Saskatchewan and we include treaties five, six, eight and ten. We speak Denesuline, Cree — Swampy Cree, Plains Cree, Woods Cree — and Dakota.
Today, we will focus on four of the most significant problems with Bill C-6. We share concerns with many of the First Nations across Canada — namely, the Assembly of First Nations and our regional organization, the Federation of Saskatchewan Indian Nations.
First, Bill C-6 does not create an independent and impartial body to clear up the huge backlog of specific land claims; the previous presenters brought that concern before you. Second, Bill C-6 severely limits access to the tribunal because it will only accept claims that do not exceed $7 million. There is another hidden cap, in that Bill C-6 will allow only eight $7 million claims per year. There is a gap of spending for each year, which includes the cost of the commission, legal fees and expenses. Third, Bill C-6 narrows the definition of ``claims'' compared to the current federal policy. Fourth, Bill C-6 encourages delay because the minister of Indian Affairs is under no obligation to decide whether to accept a specific claim for negotiation within a certain time frame.
I will speak to some of the facts that substantiate Prince Albert's Grand Council concerns with Bill C-6. The Government of Canada is in a conflict of interest position because it is both the defendant and the adjudicator in specific claims. Bill C-6 narrows the definition of ``specific claims'' compared to existing federal government policy. It excludes obligation arising under treaties or agreements that do not deal with the land and assets. The matter of delay is already one of the serious consequences for many First Nations within the Prince Albert Grand Council. Bill C-6 states that no delay in responding can ever constitute ``constructive denial.'' The federal government controls the pace of settlements and decisions; and they are under no obligation to settle expediently, which would contribute to longer delays.
Interest and legal costs are included in the cap of $7 million. Therefore, while the government would be rewarded for these delays, the real value of the claim would decline. In addition, First Nations would experience a heavy burden to resolve their claims for less than the fair value.
How does this process fall in line with what we consider to be democracy? The Prince Albert Grand Council has recommendations for senators this morning in the form of amendments, as follows:
First, on the issue of an independent and impartial body to clear up the backlog of specific claims, we would argue that that person would be eligible for appointment only if both the assemblies of First Nations and the Minister of Indian Affairs and Northern Development jointly make the appointment; and that the commission be independent of the federal government.
Second, on the issue of limitation of $7 million for the tribunal, we would argue that all claims, regardless of size, have access to the tribunal if the commission could not settle the claims.
Third, on the issue of narrowing the definition of ``specific claim,'' we would argue for a return to the status quo.
Fourth, on the issue of delay of the resolution of specific claims, we would argue for a system that would allow the claimants — like plaintiffs in any other case — to refer claims to the tribunal after there is an initial preparatory meeting.
Our question to the federal government is about its willingness. Is there a willingness to change or to amend Bill C- 6? If you neither change Bill C-6 nor make substantial amendments that we recommend, then we will not support Bill C-6.
[Mr. Head spoke in his native Cree language]
The Chairman: Thank you for a concise presentation. Your concerns have been brought forward well and are easy for us to look at and consider.
Senator Sibbeston: It is interesting that rather than say that the whole bill is no good, you have given it considered review and have developed some amendments that would make the bill an acceptable improvement over what we have now. Is that your position?
Mr. Head: That is the position we take on the recommended changes or the amendments that we are introducing this morning. In respect of that, we would have a close decision.
Senator Sibbeston: We have been dealing with a number of First Nations —particularly the AFN — who take the view that the whole bill is flawed and that it did not follow the JTF recommendations. The AFN has taken the position politically that the whole bill is flawed and that it would be better to not accept it at all and start over. You have taken a much more practical approach and you are of the view that, with certain amendments such as independence and access to the tribunal, the bill could be of worth and use to you. I appreciate the stance that you have taken.
Chief Harry Cook, Lac La Ronge Indian Band: Good morning, honourable senators, guests and staff. I am a very proud Cree speaker and I would like to make some opening comments in my native language.
[Mr. Cook spoke in his native Cree language]
I want to speak to you about the experience of the Lac La Ronge Indian Band. I am the chief of the one of the largest First Nations in Canada. We have numerous communities. Our first language is Cree. We speak it in our communities, homes and our council. It is good to be bilingual and I respect people who retain their culture. It is very important for Canada to be multicultural country. It is important for us to be unique and have tolerance of other people's human rights and talents.
As a First Nation we have done well economically. Lac La Ronge Indian Band owns 14 companies. We claim to be the largest producers of organic wild rice, which is marketed in Europe, Japan and United States. With the proper land base, many of us can be good producers in Canada along with the rest of society.
It is very important that land claims be settled because First Nations have to have further land base for economic reasons and for people who wish to reside within the communities within the jurisdiction of the Lac La Ronge Band or other First Nations peoples.
We are also developing our capacity within our communities. We have the largest off-campus university program in Canada. There are currently four programs being offered in Lac La Ronge — social work, business administration, arts and sciences, and introduction to university courses before our people leave to go to university. Again, we want to share with you that a proper land base can enhance not only a community but also society generally. Our students within La Ronge have a teacher-training program. We have band-controlled schools. There has been the development of very qualified teachers who speak the Cree language, Dene language and other First Nations languages. Many of our people have learning English, French and other languages.
It is very important for us to have a continual land base. First Nations still have a very severe housing shortage within our reserves. We also need more assistance to invest in education of our people. We believe that education is key for Canada. It might lessen the immigration of other people if we develop our people to be the human resources required within this country. We need to be involved in a development of that. We also have a very still high unemployment rate. Sixty-two per cent of our population is under the age of 25. We do have many human resources, and we need to develop them.
As chief of the band, I look forward to the future of my band. I am one of the lucky leaders. I have been chief since 1987. I have served my community for 16 years. My term will run out in two years. I am 60 years old. I have done much to try to enhance the livelihood of our people. It is a rewarding situation to be a leader in a First Nations community. It is very challenging, but very rewarding when achieving major things on behalf the community.
Specific lands claims are very critical to the growth and development of First Nations. Specific claims are the basis for land and resources. We need to settle specific lands claims. We need to settle the long-standing legal obligations of the federal government to First Nations.
Litigation is not the way. The costs are very high, and it a time-consuming process. Our First Nation was able to pay for our land claim. It cost $2.4 million to take the claim to court. The claim is at the Supreme Court level at this time.
Again, with the proper land base, our First Nation would not only be more independent from government, but also more viable. With the assistance of the Senate and government, I am sure that people of our ancestry — First Nations in this country — would be enhanced if they are given more responsibility and more ability to develop some of the natural resources within our territories.
Without specific claims being settled, First Nations would neither have land nor money. They would be completely dependent on government. I do not think anyone wants that. I think people who are healthy and educated should be given an opportunity to produce the same as other Canadians. We want to reach that at some time in our history.
Many people are forced to move into the cities. Our tribal council is probably the only one in the country with a children's agenda for youth. It is very important that we have that. If there are any questions regarding that, we have some of the people here to answer.
The Senate should look at all the bills — Bill C-7, Bill C-19 and Bill C-6 — that the government is putting forward. They will need to be examined to understand what the government is trying to accomplish with these bills. That is owed to us, and it is owed to the general public.
We have brought our legitimate concerns regarding Bill C-6 to you here today. We have offered some possible options in some of the recommendations that were highlighted by my colleague earlier. However, if our substantial amendments are not accepted, we do have an option not to accept the bill.
We need to have a better working relationship between the Government of Canada and all the people in Canada, including First Nations people. I respect each and every one of you. I know you have a great responsibility, so do I. I am sure we can go forward collectively. As I see the world picture from being a leader, I see many problems in this world. Canada can still resolve whatever difficulties in this kind of forum.
Senator Tkachuk: Welcome, chiefs. I can assure honourable senators that your rice is the best wild rice in the world. You have been very aggressive in marketing it. It shows the diversity of our province and that agriculture can extend a lot further than the tree line.
You have been very organized and concise on this, I must say.
The Senate is not really limited. If we wanted to defeat this bill, we could do so. We are not limited in our powers at all. Whatever amendments we make can be sent back. If we do not like the bill, we can defeat it. There is a strong argument that we could actually defeat money bills. Although many senators say we cannot, I think that we could.
I want to clarify the question of independence because we are getting some good ideas today for potential amendments to the act. We want to understand clearly for when we are considering your recommendations later.
When you say that both the minister and the Assembly of First Nations would be recommending the appointments, how do you mean that? Would they do it separately and together or only together? In other words, must they agree beforehand? Would the names come from each party and then they would agree to them before the recommendation is made to the minister or to cabinet?
Ms. Colleen Youngs, Coordinator and Research Technician, Specific Claims, Prince Albert Grand Council: I would like to answer that. It is very critical that it is a consultative process and that First Nations are clearly included in this process. We would be expecting that the both minister and the AFN would be making decisions jointly.
Senator Tkachuk: They would form a committee? How would that work exactly?
Ms. Youngs: Potentially, they could both put forward candidates and go through a process that would be similar to that in a courtroom where jurors are chosen whereby each side says yea or nay.
The Chairman: I have one supplementary to Senator Tkachuk's question. The AFN represents the majority of nations, but not all. How would you view the appointment process without the consultation of other nations that are not part of the AFN?
Ms. Youngs: That is a very interesting and good question. Because we are strongly affiliated with the AFN, in our particular position, our chiefs would be lobbying the AFN for the candidates of our choice as our elected leaders.
The Chairman: That is good for you, but what about the other nations that are not part of the AFN?
Ms. Youngs: How would that process affect them? That is an interesting question, and I would hope that they would come forward with their suggestions.
Mr. Al Ducharme, Executive Director, Prince Albert Grand Council: For clarification, the Federation of Saskatchewan Indian Nations, FSIN operates in Saskatchewan, but there are bands in the province that are not part of the FSIN. However, they have representation in any way they wish on any bills or any kinds of policies that affect the region of Saskatchewan.
When we look at the AFN as a whole and across the nation, we recognize that not all First Nations are part of it, but there is a conglomerate or group of First Nations that would — on their own or together — form another block who may themselves appoint their own person to this particular tribunal or commission. They would not be excluded. We are working within the process of our own governance that we recognize and with which we have been affiliated.
The Chairman: It is interesting you say that, because if the AFN is included in this bill, that automatically negates any participation from other nations.
Mr. Ducharme: It is not to work to their exclusion, only within a process that exists.
The Chairman: If that is included in the bill, it effectively does that. How would you word the bill or the amendment?
Mr. Ducharme: Somehow you would have to recognize the fact that there are nations that are not part of the AFN. They would need to have a voice that is somehow recognized within the bill and outside of the AFN. First Nations are autonomous across the nation. If they wish to be outside the AFN, that is their choice, but they need to be included somehow.
I cannot speak for them, and neither can anyone here. They need to be included within this consultation as well.
The Chairman: Thank you.
Senator Watt: Welcome. On this same point, if we do not handle this particular issue, it could create animosity within Aboriginal groups. I had assumed that the Assembly of First Nations as an organization is a national body. It represents the First Nations and it is a democratically elected people. If we are trying to find another way of finding an answer to that particular problem — and I think it will further create a problem within the Aboriginal communities — whether we like it or not, as Aboriginal people, we have to stick together in terms of a national body that represents the national interests of the Aboriginal peoples. I think this is very important.
I do not think it is any of our business as senators to say that this body is not legitimate. In the eyes of the Aboriginal people, it is a legitimate organization. How do we include the ones that will be basically affected by this process? I think there is an answer to that. You could mention the Assembly of First Nations and also the ``communities that are being affected.'' What is wrong with that in terms of consulting with the communities?
Now we are talking about consulting with the communities after the fact, but I think the communities should have been consulted more thoroughly than just sending a letter sent to them. I think they should have been involved at the beginning. The Constitution is very clear. The ruling from the Supreme Court of Canada is also very clear. There are steps that must be taken if you are going to be affecting the lives of the Aboriginal people — not only by way of consultation, but also consideration of the fact that the lifestyles they live today are very different from those in the mainstream of society of Canada at this time.
Compensation also has to be taken into consideration. Here the so-called ``authorities'' that have basically stolen the land and everything else are basically telling you to say, ``Hey, you cannot claim any more than $7 million.'' I do not think this should be in the hands of the government. I think the amount of dollars you bring forward in terms of a claim should be in the hands of the Aboriginal community. I do not think it is right for to you give a waiver to say, ``Government, since you have a trusteeship responsibility on the Aboriginal people, therefore you can do whatever you want to do.'' That is not the kind of message you are trying to give to the Minister of Indian Affairs. At times, I tend to feel that we are helping the system to further and further take away certain things from us. This has to stop.
Chairman, there is an answer to that problem. If this is done seriously and if the political will is there, there is a way to correct this bill. If we cannot correct it, I think we should reject it.
Senator Austin: I opened the questioning earlier this morning with the question of whom to consult. I would like to add to what has been said. The answer we got this morning from Chief Shade was that his community would want to be consulted before senior appointments were made. Chief Cook said the same thing. It seems to me that if a band has a claim before the commission or the tribunal, then it has an interest in being consulted and should be consulted. There is no problem in this day and age; we have e-mail and faxes, and you can be consulted instantly. You are told, ``This position is now open. Here are the criteria for appointing a person. Do you have a recommendation?'' If those bands that are affiliated with the AFN want to ask the AFN to coordinate the response or recommendation, they are free to do so. To answer Senator Chalifoux's questions, those who do not want to consult with the AFN — whether they are members or not — are free not to do so.
There is no attempt to exclude the AFN from the consultative process. Evidently, the department does not want to put the AFN in the legislation, saying, ``You must consult with the AFN and only the AFN. In the department's view, that would give whoever is in control of the AFN control of the entire recommendation process, which could exclude a wide number of groups that have an interest in being consulted because they have a claim.
That is my best explanation, and I gather that you more or less see it the same way. Is that correct?
Mr. Head: That is a good example to support that statement. Yes, we elect people into organizations such as the AFN. Supposedly, they represent us nationally. The consultation process for Bill C-6 was by-passed. It would have been a good practice for the minister to go directly to the people and not use the same vote that he used for Bill C-7, the First Nations Governance Act, which, in our view, was neither a legitimate nor legal consultation process.
We were led to believe, by former generations, that we live in a democratic society. Both levels of government have defined ``democracy.'' We have reason to believe that governments are drawing away from that whole process of democracy where the people make the decisions that will affect our lives and those of the generations to come.
A substantial consultation process would include, in our view, visits to the communities and consult at the grassroots level and hear the people's views on the whole process. I believe that some of the comments, recommendations and concerns about the bill would be voiced at the grassroots level. These concerns, expressed at assemblies in our communities, would be echoed if the minister were to return to the community for a concise, consultation process.
Senator Léger: Chief Cook, you said that your people are great producers, which was reiterated by Senator Tkachuk. The more Aboriginal witnesses I meet, the more I learn that you have financial and economic focuses as well. That will be an extremely powerful combination.
I hear a great deal about being equal — the government on one side and the Aboriginals on the other side with the joint task force. If both have rights, then both have responsibilities. The government is responsible for the whole country. When you are invited to consult, does that include all Aboriginals, First Nations, Metis and Inuit or is that your band only? Is there a unified preoccupation?
Mr. Cook: I will try to answer that my way. First, we believe that treaty people are unique in this country. Our forefathers signed treaties historically. Currently, the Metis and others do not have land bases. Therefore, when we talk about specific claims, it concerns the outstanding obligations of the government to the treaty people with whom it originally had agreements.
Senator Léger: I have the feeling that if we are to share, then the two have to —
Mr. Cook: People have individual agendas. The Lac La Ronge First Nation has 18 reserves currently; I have six communities. I am autonomous to do what I feel is right for the betterment of my people, even though I am affiliated with the Prince Albert Grand Council, twelve chiefs and 30,000 treaty people. I am also affiliated with the Federation of Saskatchewan Indian Nations — 100,000 people, 74 bands and 633 bands nationally.
Many of us in our region have particular aspirations to lead our people to more prosperity and such for the future. We have individual agendas, although we talk on a global basis, at times. When you get right down to it, the Cree Grand Council is presenting its best interests today. I believe others should be respected as well.
I would like to say something about humanity. I believe that commissions could be limited to only certain people who would be invited to participate. I have a great deal of faith in human beings that have a good heart and an open mind, and who are willing to listen to something that is good for the betterment of humanity. I will leave it at that.
The Chairman: I thank all our witnesses this morning for their worthwhile presentations.
The committee adjourned.