Evidence of meeting #72 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was land.

On the agenda

MPs speaking

Also speaking

Isadore Day  Ontario Regional Chief, Chiefs of Ontario
Luke Hunter  Research Director, Land Rights and Treaty Research, Nishnawbe Aski Nation
R. Donald Maracle  Chief, Band No. 38, Mohawks of the Bay of Quinte
Ryan Lake  Legal Counsel, Missanabie Cree First Nation
Ava Hill  Chief, Six Nations of the Grand River
Chief Abram Benedict  Grand Chief, Mohawk Government, Mohawk Council of Akwesasne
Phillip White-Cree  Acting Manager, Aboriginal Rights and Research Office, Mohawk Council of Akwesasne
Stacey Laforme  Chief, Mississaugas of the New Credit First Nation

8:40 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

The question goes to MP Romeo Saganash.

8:40 a.m.

NDP

Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC

[Member speaks in Cree]

Thank you, all three of you, for being here. I want to start with a general question because we are doing a study on this comprehensive and specific claims policy of Canada.

One of the things that has always intrigued me from a legal and constitutional perspective is the fact that in this country the rule of law, the honour of the crown, section 35, which you say is a full box and I agree with that, Canadian federalism.... In the Quebec secession case, the Supreme Court refers to the indigenous peoples of this country as political actors on the same footing as the federal government, the provinces, and the territories. I agree with that as well.

Both of you referred to the UN Declaration on the Rights of Indigenous Peoples and the need to apply those minimum standards in our relations with Canada, yet we hear all of these difficulties in implementing our treaties. What do you think seems to be the problem here?

8:40 a.m.

Research Director, Land Rights and Treaty Research, Nishnawbe Aski Nation

Luke Hunter

As a general comment, I guess with UNDRIP, in order to be effective it has to have teeth, either through some form of legislation or by being recognized in the Constitution. That's the only way it can be very effective. You can't have an UNDRIP, an international law, or a convention that you just adopt as a policy, because that policy will not work. That's a critical point when you talk about historical grievances.

I know it's been brought up in some first nations and at a recent AFN assembly. Canada's first nations were not part of the whole nation-building process when Canada was founded, so when you look at what the shortfalls are, obviously Canada and first nations need to be full partners in Confederation. There are some who say we haven't seen that. Certainly the announcement of the 10 principles tries to do that, but it falls short of the first nations' expectations.

The issue is there seems to be a lack of confidence—I guess from the general public—in first nations' ability to manage their own natural resources. Why can't first nations manage their own treaty territories? That is the critical issue.

8:45 a.m.

Ontario Regional Chief, Chiefs of Ontario

Chief Isadore Day

I'll summarize by paraphrasing that question. If we have all these instruments of recognition and principles to implement treaties, why are they not being implemented? What is the problem? What's wrong?

There are a number of contradictions and inconsistencies in what the government says and what it is doing. Currently we're involved in a law and policy review of four pieces of legislation. At the AFN I have the lead on those files. Yesterday we indicated to the federal government that we have to pause that process because what the federal government is saying is not what it's doing. There is no co-development, yet they say it. They put that out there as an overture and a commitment, but it's not happening. The federal government has to start acting on what it says.

The other thing is that the systems that are currently in place, for example, the Council of the Federation and the first ministers' meeting process, involve us as well, but we're only involved insofar as, “You come to the table but you're not part of the federal family. Therefore, we will feed you a good meal, we'll talk nice words, we'll listen to you, but you have to leave. You even have to leave when we have the real photo op with the federal family.” There is something wrong with the fact that we're basing this relationship on words and a lack of follow-through. That's the problem.

We will meet with the first ministers on Tuesday of next week, and at that time we'll still be working within the same process where we're being brought in as people who are not even part of the formal process. We're given some airtime but we're not any part of the substantive decision-making. The division of power is still alive and well in those processes, and we are certainly not provided that opportunity to say, “This is how our treaty is impacted. This is what resource revenue sharing should mean on a totally shared approach.”

That's the problem. There are a lot of inconsistencies in many of the current systems.

8:45 a.m.

NDP

Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC

One of the things that has been said over and over again throughout these hearings—and we started a couple of days ago in Vancouver—is with respect to the process. Many have argued it's not independent enough and is too adversarial, but however we tweak these policies that are in front of us, they still remain policies, hence the importance of your reference to having a legislative framework.

I'm happy to inform you that Bill C-262 will be debated next September and will provide exactly that legal framework, UNDRIP as the legal framework, for everything we do from here forward. Whether it's policy, legislation, or what have you, these standards will be the minimum standards for this country, so I'd like you to comment on that because—

8:45 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

I'm sorry, your time has run out.

8:45 a.m.

NDP

Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC

Can I just finish my thought?

The policy will remain policy while we're dealing with the constitutional nature of our relations.

Thank you.

8:45 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We now move to MP Anandasangaree.

8:45 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Chief, I invite you to answer Mr. Saganash's question, although maybe very briefly because I—

8:45 a.m.

Ontario Regional Chief, Chiefs of Ontario

Chief Isadore Day

Okay, thank you.

It's a very important question because colonial governments have the ability to set out legislation and regulate that legislation with policies. These policies are really at the whim of the government of the day. We see so much opportunity lost because governments bend, twist, and amend, and they clearly diminish preceding policy.

In that respect, I would say that legislating the minimum standards of UNDRIP is critical. That's how you create a neutral, fair platform for the nation-to-nation relationship. Without legislating minimum standards within UNDRIP, it's not going to happen. Clearly, that has to occur. We need the statutory certainty to ensure that there is a level playing field.

8:45 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you.

Thank you both. Good to see you back.

Mr. Hunter, I have a very specific question. You indicated that none of the specific claims have been taken to the tribunal. What's the reason for that? Is it structural? Is it financial? Is it because it was resolved outside of the formal process?

8:50 a.m.

Research Director, Land Rights and Treaty Research, Nishnawbe Aski Nation

Luke Hunter

I guess when it was established in 2008, there were still a lot of them. The tribunal still hasn't fine-tuned some of its practices and rules. Also there's what's been happening since it was established, even though there have been favourable judgments. There's been abuse, so I think the first nations are not comfortable taking it to a tribunal with uncertainty.

In terms of the last case regarding the competition case in B.C., Canada initially filed its review on the competition issue, but it withdrew last month, which is good news. Certainly, the tribunal did rule on a lot of the liability issues, but compensation is just starting to be finalized, so I guess it's more of a wait-and-see approach. There is also the fact that when you file with the tribunal, there are costs. Even though the claims branch will fund your file, they don't fund all of it, so the first nation would still have to fund some of the cost.

8:50 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

With respect to NAN, how many outstanding specific claims are there in Ontario?

8:50 a.m.

Research Director, Land Rights and Treaty Research, Nishnawbe Aski Nation

Luke Hunter

For Treaty No. 9...? I'm going to say roughly 70 to 100, so we still have quite a few claims.

8:50 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Chief, you indicated earlier that the funding for these claims has not been consistent with the quantum that's actually the outcome. Can you give us an example of where this has been the issue? Do you have any suggestions as to how we can address this going forward? One of the things that came up—and I think Mr. Saganash touched on it—is that there's been some question as to the independence of the process. Funding appears to be a lever that is indirectly resulting in outcomes that may not be as desired from the outset.

8:50 a.m.

Ontario Regional Chief, Chiefs of Ontario

Chief Isadore Day

As the regional chief, I'm not a specific claims technical person. However, I do know enough from what are brought forward as political assertions in our assemblies, as well as from my own first nation. I'll speak for my own first nation, and we will provide supplemental information on your question because it's a very important one.

In terms of the true value and the quantum of the value at the time of the infraction of the claim to now, I can only say that in Serpent River First Nation, we lost probably about 80 years of use of that land. You have to think that these are often prime locations where there was forestry, mining, or access to water—strategic locations, if you will. The value of that needs to be established based on an independent review. If the current process does not allow that independent review, something needs to change to ensure that there is a fair and objective outcome in terms of the assessment of value and what the full loss in value is that should be awarded in those claims. It's currently not there, and something needs to be built into the current process.

8:55 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

One of the things we've heard a number of times is that during the time that the claim takes to settle, oftentimes there is extraction taking place.

Do you have any suggestions as to what should be done to freeze, for lack of a better term, the movement of things from the contested area? One of the things is that you can succeed in the claim but still lose out in the long term because the resources are gone.

8:55 a.m.

Ontario Regional Chief, Chiefs of Ontario

Chief Isadore Day

I know one of the things they've removed from part of the process, and it may be incorrect, are land cautions. At one point in time, they would put out a land caution to any developers. There was formal notification of contested lands. I think that those instruments need to be put back into the process. Even more than that, I think there should be a full moratorium on any development or any use once a claim is established.

Thank you.

8:55 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you.

You have about six seconds. We feel like we need about six hours.

We're now moving into the five-minute round, and MP Kevin Waugh is going to wrap up. We only have about three minutes of that five minutes left.

Over to you.

8:55 a.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Let's start.

You signed a provincial agreement two years ago on collaboration, on the natural resources. How is that going?

September 29th, 2017 / 8:55 a.m.

Ontario Regional Chief, Chiefs of Ontario

Chief Isadore Day

We signed an agreement on the political accord with the Ontario government. That's what you're referring to, I understand.

8:55 a.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Yes.

8:55 a.m.

Ontario Regional Chief, Chiefs of Ontario

Chief Isadore Day

That, I can tell you, has seen some gain and benefit, and I would have to give credit to the current Wynne government. There are a number of open doors now. For example, the first TLE claim was awarded under the Ontario government, and that says a lot about the political relationship.

I think there will now be a need to recognize that we can't be politically domesticated under those types of agreements, and I think the Wynne government is moving toward more innovative bilateral arrangements. AIAI just entered into an agreement in the last couple of days with the Ontario government.

However, let me qualify that by saying, if we're still not recognized within Canadian federalism, and if we're still being domesticated in a sense, clearly that process will eventually run out of our good graces. When the Ontario government goes off and negotiates power purchase agreements in other jurisdictions and it affects our worth and value in terms of our territories, our treaty lands in Ontario, then there's a problem there.

NAFTA is another..... Listen, provinces and territories are substates at the international level, which tells you a lot. We need to be recognized as nations. To our friend and colleague, Romeo Saganash, and his efforts, we need to elevate and we need to make legal those minimum standards in UNDRIP, even at the provincial level.

Meegwetch.

8:55 a.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Mr. Hunter, you made a good point. You represent two-thirds of the province. Northern is way more expensive—we know that—yet the funding doesn't match up.

You made a good point about the funding. We've heard that since Monday, starting in Vancouver, but you have raised different views. I mean, look at the area you represent, and northern, where probably twice as much money is needed to facilitate your issues.

Do you want to comment on that?

8:55 a.m.

Research Director, Land Rights and Treaty Research, Nishnawbe Aski Nation

Luke Hunter

Yes. You're right.

Certainly the cost of doing business in the north is astronomical, not only just doing government business but to feed your family and put a roof over your head. Certainly we're not prone to crisis. I guess every day you see headlines. I think funding is a critical point in everything that we do in our communities and territories.

That's the big issue for us, funding, and then research and negotiations. That's a critical point as well in coming to an agreement with the historical grievance.