Ladies and gentlemen, members of the Standing Committee on Aboriginal Affairs, first nations communities, chiefs, and councillors, my name is Tim Thompson. I am Grand Chief for the Mohawks of Akwesasne, a community of approximately 12,000 Mohawks who reside on ancient aboriginal territory along the St. Lawrence River.
Akwesasne has a unique geographical and political location between the countries of Canada and the U.S. and the provinces of Ontario and Quebec and New York state. Our community has been involved in several land claims with Canada over many years. Some of our claims are very large. Some are currently being negotiated. Some are being litigated. Some have been in the process for more than 30 years. Some have been rejected. And there will definitely be some Akwesasne claims that will be impacted by this legislation.
We come to the standing committee because we have not been consulted on the new Specific Claims Tribunal, Bill C-30, and we want to bring our concerns forward on this impending legislation.
We believe that the first of many shortcomings surrounding the new bill is the lack of direct consultation with first nations communities. AFN does not represent the Mohawks of Akwesasne. We are a member of the Independent First Nations of Ontario and the Iroquois Caucus, neither of which have had meaningful consultation in this process. Some very important issues, such as claims over $150 million and some additions to reserve issues, have not yet been resolved, even though Canada and the AFN recognize that there are many unresolved issues with regard to this new legislation and have proposed that these concerns will be negotiated through political agreements with AFN.
Without a consultation process, communities like Akwesasne will have no part in the building of legislation that will ultimately affect them. Akwesasne, therefore, does not know the future outcome of some very important issues, if in fact we will be consulted, or if the issues will be resolved to our benefit.
At present, Canada has aligned itself with the Assembly of First Nations as the main counterpoint to the negotiations to move Bill C-30 through Parliament. Akwesasne considers this very political approach to consultation with first nations inadequate. For important legislation such as this, which will impact the relationship of the crown and first nations for decades, real and meaningful consultation must be held with all first nations.
Canadian courts have stressed that negotiation is preferable to litigation to resolve aboriginal claims. The Specific Claims Tribunal will create a new level of litigation in claims, with many of the disadvantages of the court. For example, the political nature of the claims permits them to address flexibility. The tribunal, in contrast, would only be able to offer cash. The political nature of negotiations allows communities to have real control over the outcomes. The tribunal would give increased authority to the lawyers. In court, if you make a statement of claim and the statement of defence raises new issues, you have a right to reply. With the new tribunal, you have no right to bring the evidence to rebut the grounds of the rejection of your claim. It appears to us that the tribunal has a more limited range of processes and remedies available to it than the Indian Claims Commission did.
The present Indian Claims Commission has worked hard to establish a reputation for impartiality. We worry that the new tribunal will be seen as Canada's attempt to replace an impartial body with one that will be more favourable to the federal government's position. One of the most significant issues is the makeup of the tribunal. Currently, Bill C-30 proposes that Canada will appoint Superior Court judges, of which only one will hear any particular claim. We do not believe that decisions on claims should fall to just one judge. Additionally, the selection and appointment process for the members of the tribunal is not reassuring. It is only in the political agreement, not the legislation, that consultation with AFN regarding the recommendation of judges to the tribunal is proposed.
Depending on the makeup of the tribunal, it might provide federal claims officials and negotiators with an incentive to reject claims or have negotiations break down, as the tribunal could be seen as pro-federal rather than impartial.
Bill C-30 will also create a more structured approach to specific claims, which will have the effect of providing very little flexibility to the tribunal to address the unique and complex circumstances that have created the claims in the first place.
The new act provides for monetary settlement only. Other creative solutions or options, which may be more reasonable, productive, practical, or restorative, will not be entertained.
Most claims are about land. The fact that the tribunal can only award cash means it would not be able to address many claims in a way that would satisfy the claimants. The fact that the courts can deliver land at least more often than the federal system will promote litigation. Bill C-30 will completely eliminate the ability of first nations to bring any discussions or studies relating to the social, cultural, and spiritual connection to the land as part of the negotiating process to settle a specific claim. Bill C-30 clearly makes this a non-negotiable issue.
The political agreement states that:
...resolving claims is a legal and moral obligation, and recognizing the cultural, spiritual, social and economic significance to a First Nation of recovering or replacing land that was unlawfully taken.
The words are beautiful, but they fall far short of one important component. They do not allow for the discussion or negotiation regarding injuries to culture that are associated with loss of land. First nations know the impacts of injury to culture that have occurred with loss of land. This obvious injury should not be ignored.
The new legislation proposes to exclude claims in excess of $150 million. This exclusion is something the AFN proposes to address through a political agreement. Meanwhile, its exclusion will allow government officials to coerce first nations to artificially devalue their claims to fit the current criteria. With a cap on the size of the claim that the tribunal can address, federal negotiators will be tempted to collapse negotiations on large claims knowing they have nowhere else to go, while there will be pressure on first nations to accept less than fair value for their claims to bring them under the cap if a claim goes to the tribunal. The presence of the tribunal as a process for settling smaller claims will be accentuated as a further excuse for avoiding settlement of larger claims.
The larger claims represent the greatest benefit for first nations and the greatest accumulated debt on the part of the federal government. However, with a limited annual budget and a fascination with statistics, Canada prefers to resolve smaller claims. If the tribunal is not able to address the larger claims, these larger claims will be further deferred and become even less likely to be resolved. With the cabinet looking at these claims, it surely shows there would be no transparency about the decisions that are made, as these decisions will be made behind closed doors.
With the Iroquois Caucus, many of our claims are above $150 million. When Canada says there are 20 claims in excess of $150 million, sitting at the table are probably 16 of those claims.
One major obstacle to settling specific claims is the lack of clarity in Canadian law. Currently, only the courts can clarify the law, but litigation is currently being discouraged. Unless the rules and practices governing the claims process, including those proposed for the tribunal, are clarified and expanded, claims will remain unresolved.
Bill C-30 also appears to place into legislation the retroactive surrender of lands originally taken illegally as a consequence of settling a specific claim and receiving compensation. There will be no future options available on this point if this legislation is passed by Parliament.
In conclusion, I would like to say that the AFN is not a first nation and does not speak for all first nations in Canada. Akwesasne wishes to make it abundantly clear that support by the AFN does not translate into acceptance of the specific claims bill, Bill C-30, by the first nations who are affected by this bill. It is important that Canada honour its obligation to first nations communities to consult with them regarding the legislation that will affect their claims and their future.
Before I end, we make the following recommendations:
A bona fide consultation process must occur with full participation of first nations communities.
Revisit the terms of reference, capacity, authority, and remedies available to the tribunal.
The make-up of the tribunal should be composed of a variety of disciplines and should include first nations members.
The tribunal should be a three-member panel, one being a Superior Court justice and the other two members representing other related disciplines appropriate to the circumstances of the specific claims, all having an equal voice.
The settlement solutions available to the tribunal should include land, financial, and other creative components in a manner that will satisfy the parties.
There should be consultation with first nations to ensure that the political agreement provides for the discussion on restorative justice with regard to injury to culture associated with the land.
There should be consultation with first nations to ensure that the political agreement provides for the discussion on claims above $150 million.
Consultation with first nations should occur to ensure that the political agreement provides for clarity in the rules and practices that are used in the settlement claim.
Consultation with first nations should occur to ensure the political agreement provides for discussions on options regarding the surrender component of claim settlements.
With that, I thank you. Nia:wen.