Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 10 - Evidence - Meeting of November 7, 2006
OTTAWA, Tuesday, November 7, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 9:11 a.m. to examine and report on the nature and status of the Government of Canada's Specific Claims policy.
Senator Gerry St. Germain (Chairman) in the chair.
[English]
The Chairman: Today our committee continues its special study on specific claims. The committee intends to examine the federal specific claims process with a view to making recommendations to contribute to the timely and satisfactory resolution of First Nations' grievances in this matter.
Let me introduce some of the committee members. My deputy chair, on my left, is Senator Sibbeston, from the Northwest Territories, and on the same side of the table is Senator Lovelace Nicholas, from the Province of New Brunswick.
Honourable senators, we do not have quorum but under section 89 of the Senate rules we are allowed to receive evidence and hear witnesses and so we will proceed because the witnesses have come from a great distance and we are interested in hearing what they have to say.
I would like to proceed in that fashion. Senators, are we in agreement?
Hon. Senators: Agreed.
The Chairman: Today we have witnesses from both ends of the country. We hope they will help us better understand the challenges of specific claims, the process and hopefully make recommendations to fix the problems.
First we have before us the representatives from the Mi'kmaq Confederacy of Prince Edward Island. The chair, Ms. Darlene Bernard, is the chief of the Lennox Island Band. She is accompanied by Ms. Tracey Cutclifffe, Executive Director. Ms. Tammy McDonald is also with you.
Chief Darlene Bernard, Lennox Island Band, Chair, Mi'kmaq Confederacy of Prince Edward Island: Thank you for having us here this morning. We are honoured to be here to present our evidence. Tracey Cutcliffe is the Executive Director of the Mi'kmaq Confederacy of Prince Edward Island; she is also the band government adviser to the Lennox Island Band. Tammy MacDonald is our research director and works directly with our department. Tracey Cutcliffe will be presenting our evidence this morning and we certainly will be looking forward to answering your questions.
Tracey Cutcliffe, Executive Director, Mi'kmaq Confederacy of Prince Edward Island: Thank you, senators. We are very pleased to have been invited here to provide comment based both on our experience and in general with regard to the specific claims process. In our experience and in our opinion, the claims process as it currently exists has some very significant and fundamental flaws. The execution of the process has resulted in what can best be described as a tangled mess of bureaucracy, which even the most experienced of participants, can be hard-pressed to understand. Unfortunately there are redundancies, lack of communications and numerous delays, which all serve to highlight the inefficiencies with the existing process.
The Prince Edward Island First Nations have a limited experience with the specific claims process; however, the claim that is currently within the system is very demonstrative of the challenges with the system.
The current claim from Prince Edward Island is from the Lennox Island Band. It is with regard to an important piece of land known as Hog Island, which was purchased under a 1942 federal Order-in-Council specifically for, ``the Indians of Prince Edward Island.'' However, the land was never designated as reserve.
With this particular example, the Lennox Island First Nation first submitted the claim on December 16, 1996. Nine months passed before it was contracted for research. The research was completed, reviewed and sent back to the First Nation on August 28, 1998. It was a joint research initiative between the band and the Department of Indian Affairs. The specific claim was then submitted to the Department of Justice on February 7, 2002. After researching, reviewing and a significant amount of wrangling, the Department of Justice issued a preliminary opinion and a legal opinion was signed on March 24, 2005.
This is where the claim sits and will remain until it is deemed appropriate for it to begin to wend its way through the final leg of the specific claims system. It has been one and a half years waiting for an analyst to begin researching and reviewing the claim once again. We see the type of redundancies, lack of communication and delays with this particular example.
It has now been ten years since the claim was initially filed, and it has not yet begun its final leg of the journey. These types of monumental delays represent the most significant flaws in the specific claims system. Unfortunately, these delays often begin long before the First Nation's claim even reaches a specific claims branch. Initial research can and is often delayed due to funding issues. For lack of a better description, the process of questioning — and we have heard it described by many as nickel and diming — by the financial officers within the specific claims process, can result in numerous delays in the system, recognizing that those officers are responding to a process that they provided.
First Nations understand the need to have accountability for each dollar that is spent, but the reality for First Nations is that the delays can sometimes force a layoff of personnel and the slashing of a work plan for the research unit in question.
This, unfortunately, creates a potential for conflict between the First Nations expectations and what the research department can realistically deliver. It can also create a vicious cycle as any change to the budget will once again delay the implementation of the work plan.
With the Lennox Island First Nation, Hog Island specific claim, the most significant delay has occurred in the Department of Justice. It took three years before a legal opinion was signed and now, one and a half years later, we are still awaiting the legal opinion to be reviewed.
Why does this significant delay in one department happen? Perhaps it occurs because there are too many individual divisions within the Department of Justice. The First Nations specific claim is bounced from department to department, division to division, each being inhabited by personnel with their own views and ideas concerning the legality of the claim and its accompanying research. Again, we face delays, redundancies and a lack of communication.
The final delay in the specific claims process can be found in the multitude of superfluous research, and in the reviewing of the research that is done and redone for each phase of the claim. Redundancies abound as the initial research from the First Nation is counter-researched, then the counter-research is reviewed and researched again, followed by yet more research for the Department of Justice.
Finally, there is an internal review of all of the research conducted, with an option for yet more research to be conducted. The resulting delays can add years to the processing of a claim. All the while, the material being looked at by the various departments and organizations is essentially the same.
As we have already indicated, lack of communication also plays a significant role within the specific claims process. Communication throughout this process is extremely challenged — communication between various departments of the Specific Claims branch, communication between the various divisions of the Department of Justice and the Specific Claims branch and, finally, communication between the levels of bureaucracy and the First Nation who has submitted the claim.
As our research director, Ms. MacDonald, can attest, a recent attempt to ascertain the status of the Lennox Island First Nations Hog Island specific claim has resulted in a multitude of phone calls and letters before the claims analyst responsible was finally located. Keeping the First Nation informed of how and when each phase of the process has been completed might take some additional effort, but it would certainly go a long way toward alleviating the atmosphere of us versus them in this process.
As we expect you have heard throughout this review process, there are certainly flaws in the specific claims system. Can any improvements be made? That will depend upon the level of commitment to the submissions of the various invited participants. The short-term solution, in our opinion, certainly involves increases — increases to the amount of funding available and increases to the amount of staff allotted for the specific claims process.
More funding will certainly facilitate resolutions. More staff will result in quicker turnarounds. However, it is important to note that this is for the short term. The long-term plan must respond to a process that is fundamentally flawed. Only a complete overall of the how and the why of the claims system can ultimately fix what has become a bureaucratic nightmare for everyone involved.
A long-term plan should involve streamlining. Streamline the process by cutting out the need for double and even triple research. Involving all interested parties to contribute to the research would perform a valuable service for both the Government of Canada and the First Nations communities.
It would show good faith on the part of the government, that they are willing to work toward resolving the fundamental specific claims issue. It would also show good faith on behalf of the First Nation, that they are willing to work toward a solution that best serves all parties involved.
We suggest that the final effort at streamlining the specific claims process should involve the consolidation of the system. Currently, different organizations complete different aspects of the claim. Why is this necessary? All parties concerned are interested in the same result — a resolution one way or another of the specific claim in question.
The solution would be to create an umbrella organization where each phase of the specific claims process would be located in the same area, governed by the same policies and overseen by the same administration. This would also eliminate the excessive use of checks and balances, the excessive reviewing and double- and triple-checking of facts that can be found at each phase of the specific claims process. If a clear set of guidelines can be created, a clear set of procedures outlining each phase, involving all aspects of the specific claims process, it would help to eliminate the problems related to redundancies and lack of communication.
In conclusion, while the commitment behind the specific claims process is absolutely sound, the bureaucracy that has evolved from the implementation of this commitment has become overwhelming for everyone involved. Unfortunately, in an effort to create a fairer, more impartial resolution, government has allowed for the evolution of a process made up of a tangled mess of overworked individuals and extensive inefficiencies. The redundancies, delays and lack of communication highlight this process and serve to defer the completion of each specific claim for many years.
To resolve this problem, there must be a complete overhaul of the specific claims process. It is important to remember that simply increasing funding and human resources is not the answer. If this is the only response, it could actually result in contributing to the bureaucratic nightmare. The increase of financial and human resources will be an important aspect of any overhaul, but it must be in conjunction with a comprehensive streamlining and consolidation effort.
I would like to thank you very much for inviting us to participate in this important review. On behalf of the Mi'kmaq Confederacy of Prince Edward Island — the two First Nations of Prince Edward Island — we wish you the very best in the difficult task ahead.
The Chairman: Thank you, Ms. Cutcliffe. Does that complete your presentation, Chief Bernard?
Ms. Bernard: Yes, it completes our presentation.
The Chairman: Honourable senators, what we have heard this morning, in some form, we have heard before, but I think it is important that we hear from all regions of the country.
It is easy for us from the West to gravitate to the West, but it is important to hear from Aboriginal peoples in the eastern part of the country, where there may not be as large a population but they certainly share the same frustrations that our Aboriginal peoples in the West do.
It is hard to believe, after listening to Ms. Cutcliffe's presentation, that we, as a country, are still going around in circles and basically chasing our tail on this issue. We have heard about the research problem before. Have you monitored this quite closely in your claim, how they continue to research and research again?
Ms. Cutcliffe: Frankly, one of the issues that existed in P.E.I. is that there was a lack of resources at the First Nation level initially. It is only in very recent years, specifically in the last three years, that we have been able to access the resources to establish our own research unit, of which Ms. MacDonald is the director.
We have monitored, to the best of our abilities, over the last 10 years. In more recent years, through the efforts of our research unit and Ms. MacDonald, we have gotten some insight into how the claim was delayed and how those research efforts that become double- and triple-checked and reviewed over and over again have been delaying the claim throughout the process.
The Chairman: I have one quick question, senators, and then I will go to Senator Lovelace Nicholas.
I am sure you are familiar with Bill C-6, the legislation brought forward; do you feel that it is amendable? I think it is proclaimed, but not enacted. It sits there as a piece of legislation that was derived to try to resolve this problem, but it never did get the approval of our First Nations in any part of the country, from what I can understand.
Have you looked at that? Do you think that this would be a course of action, if we were to amend this legislation; or do you feel that the problem is so huge that we should start from the beginning? I would like your opinion on this.
Ms. Cutcliffe: Certainly. I will let Ms. MacDonald or Chief Bernard weigh in. However, if you go back to the presentation that we made, any of these problems in specific claims is no different from many of the other issues facing First Nations.
In our opinion, the resolution is something that cannot be resolved through a simple legislative change. The types of changes that have to be made to this process are endemic to the entire bureaucratic system. We certainly believe that those types of reviews with respect to the entire process are the first place to start, and not simply a legislative response.
The Chairman: Do you have any further comment, Ms. MacDonald?
Tammy MacDonald, Research Director, Mi'kmaq Confederacy of Prince Edward Island: Yes.
Senator Lovelace Nicholas: You mentioned that there are flaws and delays with specific land claims. Do you think those occur to discourage First Nations from pursuing land claims, causing them give up all together?
Ms. Bernard: No. Perhaps they discourage us but we will not give up. I do not think any First Nation will give up.
Senator Lovelace Nicholas: Do you think it is the purpose of the Department of Justice is to discourage land claims?
Ms. Bernard: I could not comment on their motives. It is a very cumbersome process and any process looked at in the future must be a timely, efficient and respectful.
Senator Lovelace Nicholas: What would be the significant economic development if and when land claims are resolved?
Ms. Bernard: Are you asking about Prince Edward Island and Hog Island?
Senator Lovelace Nicholas: Yes.
Ms. Bernard: The indigenous First Nations community of Prince Edward Island are the Mi'kmaq people and we feel a strong sense of ownership of the sacred Hog Island. We want to see the issue settled so that we can protect the island and move forward. We are not looking at economic benefits for this site because it is a sacred burial ground.
The Chairman: How far is it off the main island?
Ms. Bernard: It is not far. I could swim over, and I am not a good swimmer.
The Chairman: How large is the island?
Ms. Cutcliffe: I believe it is about 1,300 acres.
The Chairman: Is it inhabited?
Ms. Bernard: No.
Ms. Cutcliffe: It is an ecologically and environmentally sensitive strip of land. In a sense, the ``chain of islands'' in this specific claim essentially protects Lennox Island Reserve from the Northumberland Strait.
Ms. Bernard: It is a natural barrier.
Ms. Cutcliffe: Yes. If it did not exist, there would be great devastation for the existing Lennox Island community. Obviously, not only are there traditional and historical connections with the land but also it is vitally important to the protection of Lennox island Reserve, located within the Malpeque Bay. This chain of islands protects the bay by acting as a barrier set of islands. There is great interest in protecting that piece of land.
The Chairman: Hog Island is one island only.
Ms. Cutcliffe: It is a chain of three islands.
The Chairman: I am trying to clarify this so we can visualize it properly. This meeting is being televised and many of our viewers do not understand that the specific claims process is an effort to rectify the huge injustices imposed on our Aboriginal people. For example, highways, railways and various other incursions have violated Aboriginal lands. As well, Indian agents at one time committed fraud during the former processes of establishing reserves.
Senator Sibbeston, do you have a question or comment?
Senator Sibbeston: Chief Bernard, I would be interested in hearing from you about the size of the Lennox Island Reserve, the number of people who reside therein, and what is happening there.
Ms. Bernard: My goodness, do you have lots of time? There is a lot going on. Lennox Island is located off the north shore of Prince Edward Island. It is a small island connected to Prince Edward Island by a causeway built in 1971. The total band membership is 800 and 350 people live on reserve. Our population is very young with many children. Two years ago we welcomed 14 babies into our community. We are growing fast just like First Nations demographics show across the country. We are involved in ecotourism in our community and we have a rights-based fishery and a commercial fishery. This past summer we opened our development corporation. We had begun to notice that some of our businesses were being run like programs and programs do not make money, so we moved all of that over to the development corporation. We are looking into Information Technology and property businesses as well. The Lennox Island First Nation recently purchased a property in Wilmont/Summerside, right on the main highway, where our tribal organization is housed. Next year, we will break ground in Charlottetown to open another office for rental space and a friendship centre for the First Nations community. We run all our programs, like everywhere else. We are looking at wind energy and are expecting to erect a couple of turbines in summer 2007.
I could have brought a whole list of activities to the meeting today. Instead, I will send the committee a presentation on the various things that our progressive little community is doing.
Senator Sibbeston: I notice that you have a female delegation. Where and how are the men?
Ms. Bernard: How are the men? The men are there. Chief Gould of the Abegweit Band is male. He is my colleague on Prince Edward Island and Co-chairman of the Mi'kmaq Confederacy of Prince Edward Island. Many men work for us.
Senator Sibbeston: Are there any men on your band council?
Ms. Bernard: There is one, and that happened recently. The band council has been mine since I became chief six years ago. I have had a female council throughout that time but during the last election, a young man was elected to council. He is enthusiastic but we have to rein him in now and again and remind him that we have processes and policies. We are doing a lot of work around developing policies for our community as well as building structures. Certainly, we will get into governance issues. We have come a long way with the development of our development corporation for the community.
Senator Sibbeston: Ms. Cutcliffe, in terms of a solution to the handling of specific claims, you suggested that there ought to be some streamlining and consolidation of systems through the possible creation of an umbrella organization. Would you expand on that, please?
Ms. Cutcliffe: This will help me to respond as well. I was hoping to respond to one of Senator Lovelace's questions regarding the possibility that the delays were to discourage First Nations. This is a good segue to that question.
Whether the intention is to discourage First Nations, certainly it is a discouraging process. You have likely heard this from many other witnesses. From our perspective, one contributing factor is a process founded on a presumption that government wishes to resolve historical grievances with First Nations. However, the process is at odds, in a sense, with the purpose of the Department of Justice in the claims process. The Department of Justice has a strong role in protecting the government's interests. That being the case, the role of Justice in the specific claims process seems to be very much at odds with the process generally. If the process is intended to repair historical grievances of First Nations but a major player in the process is the Department of Justice whose role and purpose is to protect government, then it seems that we are continually at odds. Many of the delays seem to occur between getting the research to the Department of Justice and then vetting and double checking the information to ensure that the claim is valid. It is for this reason that we have suggested that perhaps a streamlining of the process should envision a kind of comprehensive organization that could encompass, we would hope, the legal aspects as well. In that way, instead of a process fraught with competing interests there would be a common set of policies and procedures to facilitate faster solutions to specific claims. Admittedly, we do not have the answers and that is why we commend this committee on its work; there is quite a task ahead for the committee.
From our perspective, as we have stated, the experience with direct claims is relatively limited in Prince Edward Island. From our experience, one of the major issues is this pulling and tugging between the process itself, the intentions of the process and the role the Department of Justice plays in it.
Senator Sibbeston: I know you have not stated this, but we have heard representations from other parts of the country that say there can never be a speedy expedition towards a final resolution to these claims unless there is a kind of arm's-length organization, some independent body apart from the federal government and apart from the Department of Indian Affairs and Northern Development, that deals with specific claims.
Have you any thoughts on that? Do you think expeditious resolution of these claims must involve an independent body?
Ms. Cutcliffe: We certainly expect that will probably be the best solution. We cannot presuppose. As I have said, we have relatively limited direct experience with claims.
Certainly, our expectation, based on the fact there are definite conflicts and apparent difficulties between the Department of Justice's role and the whole intended procedure, is that an independent process will probably be the most reasonable solution. It is probably the best way to resolve the issue of the conflicts between the department's role and the intention for the process.
Senator Sibbeston: I imagine that you are a small group of people very far away trying to deal with a claim. How do you feel about dealing with an issue like this? Do you feel it is a big task and that you are dealing with an organization that is very much stacked against you in the sense that you submit your claim to the federal government by going hat in hand to the Department of Indian Affairs and Northern Development, and eventually they involve the Department of Justice, which is part of the government giving an opinion and surely has the Crown's interest foremost in its mind?
I suspect it is very difficult for them to provide an independent or fair judgment when they are being paid, in a sense, by the federal government and represent the Crown. I am interested in knowing your feelings as you deal with this specific claim.
Ms. Cutcliffe: It is definitely something that is and has been an overwhelming issue. When you consider Prince Edward Island, two small First Nations in a relatively small province, the technical resources that have been available to the First Nations are extremely limited.
With regard to specific claims and many other issues, it is absolutely remarkable, coming from somebody privileged to serve the Mi'Kmaq of P.E.I., that they are able to accomplish as much as they do and to serve the interests of their people as well as they do, considering how overwhelmingly overmatched they are with regard to processes like specific claims.
Senator Sibbeston: What is your relationship with the Prince Edward Island government? Does your claim in any way touch on the provincial government's holding of the land or anything like that?
Ms. Bernard: Historically, there has not been a relationship between the First Nations and the provincial government. However, we are certainly looking to the province to start a tripartite forum type operation where we can work on some of these issues.
As far as the specific claim goes, I do not think it has any affect on lands that were owned at all by the province. I think it was always federal land.
Ms. Cutcliffe: It is land that is currently in the hands of the federal Crown, which is very demonstrative of how overwhelming some of these delays can be.
This is a claim one would look at on its face and expect is a relatively straightforward claim. It is land already in the hands of the federal Crown. It was purchased by the Federal Crown in 1942 under an Order-in-Council that specifically said it was purchased for ``the benefit of the Indians of Prince Edward Island.''
The claim was essentially to resolve the issue as to the land never, for whatever reason, having been designated as reserve land. It is about as straightforward as you could expect for any claim, but 10 years later we are still waiting for a resolution.
The Chairman: I hope that the government's interests are the interests of our First Nations. We have had politicians talk about the just society and various other aspects, where we are praised and lauded for our fairness in the world. Yet, we cannot seem to deal with the First Nations and we are so friendly to the Europeans who first came here.
We just came out of Nova Scotia yesterday from hearings at Millbrook. I do not know if you have seen their interpretive centre, but there they reinforce the very idea that not only did the First Nations welcome and were friendly to the Europeans who settled here, they assisted them in surviving in a harsh land. Therefore, it is hard to believe that the government's interest would not be to resolve this matter. The Department of Justice should not be an impediment in any way because it just leads to frustration. Canadians are wondering why there is the odd confrontation. These are historical grievances based on the misuse of the land by fraud and virtually by theft.
I hope that you will continue your fight with us, and we will try to convince the present administration that we should take action immediately. Hopefully our recommendations will be adhered to, and your recommendations will be part of our report.
Thank you for coming all the way from P.E.I.
The Chairman: Honourable senators, you will recall that three weeks ago we had before us Ms. Debbie Abbott from the Union of British Columbia Indian Chiefs. She made it clear that the situation in B.C. regarding specific claims is complex and unique. The high number of pending specific claims in B.C. contributes to a large part of the national backlog. After the hearings, the committee received a kind invitation to British Columbia to meet with the First Nations there and unfortunately, as you know, this committee has decided to do this study without travelling and we had to decline the invitation. This was in the spirit of trying to mitigate costs and yet be efficient in the process. We have asked witnesses to travel here to give evidence in this particular case. However, we felt more input from the province was in order so we extended an invitation to the British Columbia Specific Claims Committee, and this morning we have before us the acting chair, Grand Chief Ken Malloway. He is accompanied by Ms. Jody Woods who is the research director at the Union of British Columbia Indian Chiefs.
Grand Chief Ken Malloway, Acting Chair, British Columbia Specific Claims Committee: Good morning, senators, thank you for inviting me to make this presentation to you today on behalf of the B.C. Specific Claims Committee.
In the fall of 2005, the British Columbia Specific Claims Committee was formed independent of the AFM prompted by recent court rulings that the Specific Claims Resolution Act and the much-growing backlog of specific claims from First Nations in B.C. The committee began meeting to coordinate work on these issues regionally.
The goals of the committee are: to address the unique specific claims situation in B.C.; to develop and act upon a strategy to achieve a fair, just and timely settlement of specific claims in B.C.; and to educate and inform First Nations in B.C. about specific claims legislation.
The members of the B.C. Specific Claims Committee include political and technical representatives from B.C. claims research units. The organizations comprising the BCSCC have been mandated over many years by over 150 First Nations to research specific claims on their behalf or enable First Nations to do their own research, representing 80 per cent to 90 per cent of the B.C. claims under review. They have also been involved in the claims policy reform initiatives undertaken over the past 15 years.
Since 1982 when Canada's specific claims policy was first set out in the booklet Outstanding Business — A Native Claims Policy, the credibility and effectiveness of the specific claims process has been undermined by Canada's inherent conflict of interest, as it is both judge and jury on claims against itself.
An independent Indian Specific Claims Commission was established in 1991 as an interim measure for First Nations to appeal Canada's rejection of their specific claims. The ISCC, however, can only make recommendations to the government to accept claims for negotiation; it cannot make binding decisions on the validity of claims or on compensation awards. Equally important, it does not alter the federal government's inherent conflict of interest, which affects all preceding stages of the specific claims process.
I will return to this crucial issue in a moment, but first I will outline for you the unique history of reserve establishment that has given rise to so many specific claims in British Columbia, as well as the unique status of B.C. First Nations specific claims in the large much-growing backlog of claims awaiting action by the federal government.
In the colonial period from 1848 to 1865, Indian reserves in British Columbia were established by Governor James Douglas pursuant to his commission from the Hudson's Bay Company and the British Imperial Crown. On southern Vancouver Island small reserves were established by Governor Douglas with the Fort Victoria treaties. In the Fraser River Valley and in parts of the southern interior, large Douglas reserves were established on orders of the governor. When Governor Douglas sent his surveyors out, he told them to ask the Indians themselves to point out themselves the lands they wanted reserved. He wanted them to include cemeteries, hunting grounds, villages, gardens, and favourite resorts. We are not too sure what the favourite resorts part meant. That was his instruction and it was taken literally by the surveyors. The reserves were quite large but they were cut down. From 1866 to 1870, his successors proceeded unilaterally to cut back or cut off large Douglas reserves and in 1871, British Columbia entered Confederation.
In the post-Confederation period, from 1871 to 1905, several reserve commissions were appointed to complete the allocation of Indian reserves in British Columbia. These commissions were established and guided by Orders-in- Council and former letters of appointment from federal and provincial authorities. Commission decisions to establish reserves were unilateral executive actions in that no specific legislation or treaties were involved.
Entirely separate from these 19th century reserve commissions, in 1899 Treaty 8 was signed and, pursuant to its terms, treaty reserves were created in north-eastern British Columbia and in the old Peace River Block.
From 1913 to 1916, another joint federal-provincial royal commission known action the McKenna-McBride Commission was established to adjust Indian reserves in British Columbia. Many reserves were reduced in size or cut off completely. A small number had acreage added while most simply had their earlier allotments confirmed by this commission. Order-in-Council approved the McKenna-McBride Commission's decisions by the two governments. As with the earlier reserve commissions, their decisions were unilateral and have resulted in numerous specific claims in British Columbia. It is against this historical context that the present circumstances of B.C. First Nations specific claims need to be assessed.
In British Columbia, there are over 200 individual Indian bands or First Nations living on over 1,680 small Indian reserves. These reserves comprise the second smallest reserve land base in Canada, yet we have the third largest on- reserve population in the country. The bands in B.C. comprise approximately 27 tribal nations each with distinct languages and cultures. This represents over one half of all the tribal groups in Canada.
A combination of B.C.'s unique reserve establishment history and the number and diversity of our First Nations communities has resulted in a disproportionately large number of specific claims arising from British Columbia.
For many years, the specific claims process has experienced a large, ever-growing backlog of claims awaiting decisions from the Department of Justice and the Minister of Indian Affairs. These claims can sit in limbo for 10 years or more.
When I first started doing research for the Sto:lo Nation on this in 1985, I was given a booklet called Outstanding Business — A Native Claims Policy, which is a policy booklet for the specific claims branch. It says in there that we only had to wait one year for an answer from Canada on whether or not they will accept or reject our claim. They have never lived up to that.
The Chairman: Was that 1985, you said?
Mr. Malloway: It was 1985 when I started working on it, but that booklet was created a bit earlier than that. It says we only had to wait one year, but we waited several years when we made our claims. We have always had to wait several years to have, usually, a rejection.
Since 1970, 45 per cent of all specific claims submitted to Canada have come from First Nations in B.C. Currently, there are nearly 700 claims in the backlog awaiting action by Canada. Nearly 50 per cent of these claims are from First Nations in B.C. At the Department of Justice, over 60 per cent of the claims in its backlog are from First Nations in B.C.
At the national level, the AFN chiefs committee on claims has tried to achieve specific claims policy reform by working with senior officials in the Department of Indian Affairs — first through a joint working group, from 1991 to 1993, and later through a joint task force, from 1997 to 1999. In both cases, the Government of Canada lacked the political will to implement the necessary reforms of the specific claims process.
Despite united opposition from First Nations and all the federal opposition parties of the day, the Specific Claims Resolution Act, Bill C-6, was passed by Parliament in 2003. Especially troubling to B.C. First Nations, the Specific Claims Resolution Act would bar all specific claims based on unilateral undertakings of the Crown, which could effectively block over 80 per cent of B.C. specific claims from access to the new resolution processes envisioned under the Specific Claims Resolution Act.
The current Minister of Indian Affairs has said reducing the specific claims backlog is a priority. However, he has rejected amendment of the SCRA and will not revisit the joint task force report recommendations, as advocated by First Nations from across Canada. Instead, in letters to me and other chiefs this past summer, he stated his intention to tinker with the interim Indian Specific Claims Commission.
Let me be clear. Tinkering with the interim ISCC will do nothing to fix the fundamental flaws in the specific claims process. The minister's proposal is totally unacceptable to First Nations in B.C. and across Canada. It is a major diversion from the claims policy reforms that First Nations, and the Conservative, Bloc and New Democratic parties supported unanimously less than three years ago.
Now in government, it appears that the Conservative Party has changed its tune. This is shameful, especially when one considers Minister Prentice's extensive personal knowledge of specific claims reform issues from his tenure as a commissioner on the ISCC. Furthermore, last week, Minister Prentice suggested that it might not be Canada's responsibility to settle pre-Confederation claims. It is this kind of retrograde position that often turns specific claims into flashpoints of confrontation.
Make no mistake about it; unless real reform occurs soon, it is only a matter of time before incidents like Oka, Ipperwash and Caledonia occur in communities across British Columbia. Time is running out. Our patience is wearing thin.
In 2002, the Supreme Court of Canada ruled in the Wewaykum Indian Band v. Canada case that the legal conveyance of lands from British Columbia to Canada did not happen until Order-in-Council 1036 in 1938. In the last two years, Canada has used this ruling to argue that it had no fiduciary obligations to administer and protect reserve lands created in British Columbia prior to 1938. So far, Canada has used the Department of Justice's interpretation of this ruling to suspend or terminate negotiations on two commonage claims that it had already accepted for negotiation.
I wanted to point out that the Sto:lo Nation, the Union of B.C. Indian Chiefs and the Okanagan First Nations intervened in the Ross River Dena Council Band case a few years back. Our intervention was because we were concerned about the Douglas reserves and pre-Confederation reserves. We went and intervened in that and we won our intervention, although the people from Ross River lost their case. The Province of British Columbia and the federal Crown lawyers said we are not going to argue against that intervention because Governor Douglas was the man; he was the ultimate authority in British Columbia when he made those reserves. We resubmitted our claim based on that, and we still have not heard back. We are alarmed that Canada may try to use its interpretation of the Wewaykum ruling to reject virtually all specific claims involving reserve lands in B.C. allotted prior to 1938.
B.C. First Nations are not confident that reducing the B.C. claims backlog through resolution of their specific claims is a priority for Canada. Despite the hard work of the joint task force, the underlying problems with the federal and specific claims policy still exist — lack of fairness, lack of timeliness and an inherent conflict of interest.
Senators, with 60 per cent of the claims in the backlog, 46 per cent of the claims under review and the largest number of new claims entering the system each year, it is imperative that consideration of B.C.'s unique specific claims situation is integral to any strategies developed to reduce the backlog. The smaller backlog can only be achieved through major policy reform and the dedication of significantly more resources to that task.
B.C. First Nations want our backlog of specific claims resolved. Sufficient human and financial resources must be dedicated to researching, reviewing, negotiating and settling specific claims from First Nations in B.C. or the backlog and the federal liability will continue to grow.
We recommend adoption of the 1998 joint task force recommendations to overhaul the specific claims policy. We also believe that the establishment of a truly independent national tribunal to validate and resolve claims will help to achieve fair and timely settlement of specific claims.
I am happy to answer any questions that you might have.
The Chairman: Thank you, Grand Chief. I am from British Columbia and I will lead off if my colleagues will permit me to do so.
You recommend that the joint task force of 1998 be adhered to, which was basically the establishment of an independent mechanism where the government is not the judge, the jury and the prosecution. The joint task force also recommends the alternative dispute resolution mechanism.
Have you spent any time looking at Bill C-6? I know that our First Nations have not looked at this as a very favourable piece of legislation, so it is just sitting there. However, do you think it is amendable, or do you think — like our previous witnesses from Prince Edward Island, if I understood them correctly — that we should basically start all over?
Grand Chief Malloway, I can tell you, I would not be doing this if I did not have the support of Minister Prentice. I do not blame you for your frustrations. I have been in government; I have been a cabinet minister and a member of Parliament and I have gone through the whole process. I know that often your hands are tied at certain times in explaining situations. However, I can assure you that I have worked with the senators of this committee, we have met with Minister Prentice, and we are sincere in trying to support him in government.
As you know, government is not a simple process. You have cabinet committees, you have cabinet, you have the PMO and the PCO. You have everyone to deal with. We will try to give the minister the strongest recommendations we possibly can and we need your help. We do not sit here just for the sake of doing it. We hope to effect change by virtue of our recommendations, and we need all the help we can get.
You are in the driver's seat as far as making recommendations and that is why we have asked you to appear before the committee. I hope this is not an exercise in futility because if it is, I will be one disappointed chairman. Does the joint task force think that we should begin again or is Bill C-6 a place to start?
Mr. Malloway: Actually, I thank you for that question because I was here with a number of others from B.C. and from the Assembly of First Nations. We drafted up some amendments to Bill C-6 and we appeared before the committee and made representation to see if they would agree to the amendments. All of the opposition parties at the time agreed with us, including the Conservatives who worked very hard with us. We had a number of amendments that we thought could help Bill C-6. We made the presentation to the committee but when the amendments were voted on, the room was suddenly full of people who never attended any of the previous meetings. The government-of-the-day voted it down. It was very disappointing for us that a number of people showed up at committee and voted down the amendments that were brought to the committee in good faith by the Assembly of First Nations and the First Nations in B.C. We have support from the Conservative Party, from the Bloc and from the NDP. We went forward with those amendments. It was a tough job because many people were saying that they did not want anything to do with Bill C-6. They were holding fast to the recommendations made by the joint task force. I sat on the joint working group and on the joint task force and the Chiefs' Committee on Claims. I have been at this business for 21 years and we are no closer to resolution than we were when I first became involved 20 years ago.
We always felt that the best route to take was with the recommendations of the joint task force, which was always our first choice. However, we came to the House of Commons committee, presented our recommendations for amendments and they were voted down.
The Chairman: You and I are from the same province and I am well aware of the challenges that we face in British Columbia. We can look at the history of B.C. and the commissions established since the first one in 1876. One commission after another was established — in 1898, 1912, 1920 and 1927 — to try to resolve a situation that existed in B.C. that obviously required the attention of the government-of-the-day in dealing with our Aboriginal peoples. There are some resolutions to be found as we go through the comprehensive land claims process. However, the Department of Indian Affairs and Northern Development has, by nature of its design, a paternalistic power base over our First Nations people.
Has any thought been given by our First Nations, and you are one of the leaders, Grand Chief Malloway, to truly working toward the devolution of this organization as it stands?
This organization cannot even provide safe drinking water to the constituencies that it is supposed to serve. Yet, for some odd reason, our First Nations continue to allow this to exist without truly challenging its existence. The department tries to do so many things, such as housing, education, et cetera.
Can you tell me what the thinking is? Are you at liberty to say what our First Nations leaders are thinking with regard to the institution as it stands?
Mr. Malloway: I have been on band council for 30 years, since 1976. We have always advocated for the devolution of Indian and Northern Affairs Canada. We have always advocated for looking after our own affairs and interests. Since I first came to the band council we have been trying to find a way to look after our own affairs and establish self- governance.
To access money in our accounts, we have to draft band council resolutions and beg the department for our own money. They have to look at it to determine eligibility for the money and whether we are responsible enough to have the money. The paternalistic nature of the relationship has been there for as long as I can remember.
The way in which we have been treated has always stuck in my craw. When the Indian Act was first created, the definition of ``person'' was ``anyone other than an Indian.'' That was the definition of ``person'' in the Indian Act. It has since been changed but the sense is the same today in that we feel that we are not considered people and that definition still haunts us. At the outset, the definition of a ``person'' in the Indian Act was ``anyone other than an Indian.''
The Chairman: I realize that it deviates from the specific claims process, but one of the challenges is DIAND, and that is why I raised the point.
Senator Lovelace Nicholas: Welcome, Chief Malloway. My question is on the backlog of specific claims. What are the conditions in the First Nations communities because of these unresolved claims?
Mr. Malloway: My presentation speaks to the smallness of the reserves in B.C. We were always told when the reserves were being laid out that they were small because we are fishermen. In that way, they would always protect our right to the fishery. We were told that we did not need a big land base because we are farmers. Then, they took away our fishing rights and would not allow us to make a living. We have been fighting tooth and nail to claw back the rights that we used to have in fisheries. We are trying to make a living with fisheries but we are having a tough time.
The land base is tiny. My reserve is under 700 acres, and we have 400 members. My uncle's reserve just down the road is 50 acres; the reserve next to that is about 150 acres; and another one is 40 acres. The reserves are very small. We are urban, in Chilliwack, where there are nine Indian bands all in the town. Therefore, the land is too valuable for Indians to have. We have a hard time trying to earn a living off such small reserves because we also have to house our people.
Senator Lovelace Nicholas: English is my second language, so I am unsure how to ask my next question. If these land claims were to be resolved, would it provide a better life for your communities in British Columbia?
Mr. Malloway: Yes. If the claims in our area were resolved and we had the resources and land, it would help make our life more liveable and make us more self-sustaining.
Even up until recently, when we had an opportunity to negotiate a settlement on one of our Douglas reserve claims in Chilliwack, one of the pieces of land they offered us was a swamp. One would think that would happen a hundred years ago. On the contrary, that was only about four years ago.
The Chairman: They are consistent.
Mr. Malloway: They are consistent, and they offered us a swamp. They offered us a swamp that they wanted to turn into a bird sanctuary. It would have remained a bird sanctuary, but we would have owned it.
When we talk about the honour of the Crown, they are pretty consistent. We are still under the same situation we were under a hundred years ago. We are still trying to negotiate.
One of the other pieces of land they offered us was a rocket range that DND did not need anymore, but it would have cost millions of dollars to clean it up because unexploded bombs and munitions remain in those areas. You have probably heard of people in Alberta who have paid millions of dollars to clean up DND land that was returned to them. That is the same thing we are being offered. There is a lot of Crown land in our area, but it is not being offered to us. We are being offered land that nobody else wants.
Senator Lovelace Nicholas: Thank you for your honest answer.
Senator Sibbeston: Grand Chief Malloway, I take it the specific claims from B.C. all relate to the small size of land you have and the need for more. You talk about the situation of the Aboriginal people in British Columbia, 200 bands on 1,680 reserves. Am I correct?
Mr. Malloway: Yes. Most of the claims deal with land, but there are some specific claims that deal with monies that went missing that were supposedly held in trust. There are a few claims such as that, but most of them are land claims for property that we lost over the ages.
Senator Sibbeston: With respect to your specific claims, how do they relate to the process of treaty making in B.C.?
Mr. Malloway: One thing we have been told is that we need to clean up our specific claims before we sign a treaty.
We have been involved in the treaty process for approximately 13 years. In our area, we are still involved in the treaty process. We are not close to an end yet, but we are trying to clean up our specific claims. That is one of the reasons the government offered to negotiate a settlement on the Douglas reserve, as a result of the treaty process. However, what they offered us was not acceptable.
Senator Sibbeston: On page 5 of your presentation, you mention flashpoints. You state:
It is this kind of retrograde position that often turns specific claims into flashpoints of confrontation. Make no mistake about it; unless real reform occurs soon, it is only a matter of time before incidents like Oka, Ipperwash and Caledonia occur in communities across British Columbia. Time is running out. Our patience is wearing thin.
When you make that statement, how serious are you? Just how serious is the situation?
Mr. Malloway: There are First Nations in B.C. that are still trying to protect their lands up in the Kamloops area near Sun Peaks First Nations. Friends and relatives of mine have actually gone to jail trying to protect that land. It was set aside for them by Governor Douglas in 1862 as a reserve. Then in 1865, Joseph Trutch went up there and cut the reserves off saying Governor Douglas had no authority to lay them out. They have been fighting ever since that time.
Every commission that Senator St. Germain mentioned earlier was attended by those people from the Kamloops area, who went to them and stated they wanted their reserve back. Those First Nations went to every joint commission that came along and said, ``They took our land away, they took our reserve away, it was given to us by Governor Douglas and we want it back.''
The same happened in the area where I come from. We went to every one of those commissions and told them we had reserves guaranteed to us by Governor Douglas, they were taken from us illegally and we want them back. We never stopped going to the government. We have always asked to have out land back. The people in that area have set up roadblocks and camps and tried to occupy the territory. Some of them have actually gone to jail as a result.
Similar things have happened in my area. People have occupied government buildings and stated they are not leaving. In one instance, our elders actually went in and occupied DND property because that land used to belong to us, and we were promised it would be given back to us when the hospital was shut down. We are only now becoming involved in the process of trying to get it back. The only way we could get the government's attention was to have our elders go in and occupy the buildings. It seems like sometimes that is a last resort, but it is something that we are looking at more and more. There are more and more young people out there that do not have any confidence in the current process and are determined to do whatever it takes to get their land back.
The Chairman: There is no question there are challenges. It is interesting that those land bases were established because the culture and life was based on the fishery.
Just last week it was predicted that by 2048, the world's fisheries could be virtually decimated and non-existent. It is not our Aboriginal peoples who are taking these fish and killing them indiscriminately. They are drift nets, draggers and seiners that are not, in most cases, operated by our Aboriginal peoples. The foreign fisheries have drift nets that have been cast illegally. These are the real problems.
The problem in British Columbia is that the First Nations have experienced a huge population growth, yet they are restricted to these small parcels of land. I am familiar with this problem because I have lived in the Fraser Valley for the last 40 years. I represented a vast number of these various First Nations when I was the member of Parliament for Mission-Port Moody. I am fully aware of the frustration you are facing.
I do not think the younger generation, as you have pointed out, will be as generous and as reasonable in their dealings. They will be forced into dealing with things that are basically legally theirs, and that is the unfortunate part of this whole process.
I want to thank you, Grand Chief Malloway and Ms. Woods, for appearing before us today. If you had one wish about any recommendations towards this whole process, Grand Chief, what would it be?
Mr. Malloway: For the past few years, my number one wish has been for the government to take seriously the joint task force recommendations and to work with First Nations.
We are concerned about court cases such as Wewaykum and the Specific Claims Resolution Act that are moving away from those recommendations. We are concerned that if things go the way they seem to be, 80 per cent of the claims in British Columbia will be nullified because of a policy movement in Ottawa.
The history of specific claims will not go away because of the treaty process. Roughly 60 per cent of the First Nations in British Columbia are involved in the treaty process. There are many First Nations that are not involved in a treaty process, such as the Union of British Columbia Indian Chiefs. They represent a number of the bands. They are not in the treaty process because they are afraid of what it could mean. They are afraid it could mean that their Aboriginal rights and title will be compromised. They are afraid that the claims they have in front of the government could be nullified by the treaty process.
There are many different concerns on the part of First Nations. I wish there were more people from British Columbia who were able to travel to these hearings and provide input, but our funds are pretty scarce these days. We are piggybacking on other meetings to be able to be here.
The Chairman: We appreciate that both of you have appeared here today. On behalf of the committee, we will take seriously your recommendations.
I have before me the key recommendations from the joint task force. The support staff we have as a committee certainly have not ignored this aspect of your recommendations. Thank you.
The committee adjourned.