Indigenous and Northern Affairs Committee on Feb. 27th, 2008

[The Chair, Conservative, Barry Devolin]

I will now bring the meeting to order, please.

We are going to be continuing with our hearings on Bill C-30 today.

Before I get to our guests today, I have just a couple of comments. First of all, I'd like to thank Ms. Crowder for taking the chair on Monday in my absence.

One other general comment before we start is that before the break we had a discussion about witnesses and the agenda for the committee, and we agreed we would plan up until the two-week Easter break and for the first meeting back afterwards. There was some concern, obviously, that we might be into an election campaign. I think now it appears that is not going to happen.

I won't make any comments on that score, but it appears that we will be here longer; therefore, I'm hoping that next week we can have a meeting of the subcommittee to discuss the agenda on a go-forward basis for after the Easter break—how we're going to continue working our way through the witnesses for Bill C-30.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Do you mean the vote on March 4?

[The Chair, Conservative, Barry Devolin]

Presuming that we will be here after the Easter break, I think we'll go ahead and do some planning.

On that basis, I would like to thank our witnesses here today, Deputy Grand Chief Glen Hare and Eliza Montour from the Union of Ontario Indians, and Luke Hunter, who's here from the Nishnawbe Aski Nation. We are also expecting Grand Chief Denise Stonefish from the Association of Iroquois and Allied Indians. She's not here yet. I understand she was scheduled to arrive in Ottawa this afternoon, so we're hoping she can make it.

I would like to ask the witnesses to make a brief presentation, and then we'll follow that, as is our normal routine, with questions.

I'd like to start with Deputy Grand Chief Glen Hare, if you'd like to make a five-minute presentation, please. Try to keep it to five minutes, but I won't cut you right off.

[Deputy Grand Chief Glen Hare, Union of Ontario Indians]

Good afternoon, ladies and gentlemen. We appreciate being given the time to speak to you today.

My name is Glen Hare. I'm from the M’Chigeeng First Nation. That's on God's country, Manitoulin Island. I'm also a former chief of our community--for 14 consecutive years--and I've had three terms as councillor. Now I'm the deputy grand chief. We're halfway through our three-year mandate at the union.

We're here to applaud and support the historic bill that's before us. We do have some recommendations, and we're hoping it is taken that we are here to enhance and strengthen it, and that everything is taken positively.

I'll go right to the recommendations.

The first one we have is that subclause 6(2) of Bill C-30 be amended to include lay people and legally trained persons with subject matter expertise as well as superior court judges in forming the membership of the Specific Claims Tribunal. This makeup has the potential to be more representative of our first nation communities, given that there are not many first nations superior court judges.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

You're speaking very fast. This is important.

[Deputy Grand Chief Glen Hare]

That's good to know; I have five minutes.

[The Chair, Conservative, Barry Devolin]

Okay.

[Deputy Grand Chief Glen Hare]

To facilitate a fair process and to establish a system that is more cohesive with our traditional forms of governance, subclause 11(2) should be amended to state that a hearing will be held in front of a three-person panel to implement a consensus-based approach to decision-making. We are unequivocally opposed to one person having final decision-making power, and feel that a consensus-based decision-making approach is more consistent with our traditional forms of government.

Therefore, we recommend that the hearing be heard and decided by a three-person panel.

Bill C-30 should be amended by striking subclause 12(3) to prevent overtaxation of first nations' financial resources. We are also of the opinion that an award of costs against a first nation claimant is another form of denial of justice. First nations are not the ones responsible for the long-standing backlog of specific claims; thus we recommend that subclause 12(3) be removed from the bill to ensure that first nations are not footing the bill of injustice.

Subclause 13(2) should also be struck from the bill to ensure that first nation claimants are not penalized for Canada's failure to resolve specific claims in a timely manner. The same reasoning is applicable to subclause 12(3). First nations should not be held accountable for injustices that would not have occurred if the crown's honour had been upheld.

Paragraphs 15(1)(d) and 15(1)(g) should also be struck, as the crown and first nations disagree as to whether the exceptions listed therein are, or are not, treaty rights. It is up to the Specific Claims Tribunal to determine what constitutes a treaty right and to keep open the possibility that first nations' harvesting rights in the future may form the substance of a specific claim.

It is suggested that a federal–provincial working group be established to harmonize the resolution of specific claims, particularly to resolve the issue of returning or adding lands back to first nations.

Bill C-30 should also be amended to include a new subclause 15(5):The Minister shall review subsection (4), three years from the coming into force date, the exceptions listed therein to determine if compensation will still be limited to monetary compensation.

Subclause 20(1) should be amended to include the current legal principles with respect to compensation, as the rule with respect to equitable compensation may hinder a first nation's claim from fitting into the proposed regime.

Subclause 21(1) should be amended by including a right of first refusal provision for the first nation who has been found to have been unlawfully disposed from their land.

Understanding jurisdictional matters of specific claims, the Nishnawbe Nation recommends that a federal–provincial working group be established to harmonize the resolution of specific claims, as it is unlikely that the province, particularly Ontario, will elect to become a party under subclause 23(2).

Those are our recommendations. Again, we're here for questions and answers later.

[The Chair, Conservative, Barry Devolin]

Thank you.

Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Chair, I would like to raise a point of order.

Is this your brief? Is it the brief from the Union of Ontario Indians?

[Deputy Grand Chief Glen Hare]

Yes.

[The Chair, Conservative, Barry Devolin]

Mr. Lemay, the brief with the recommendations was presented to us. The translation was only completed earlier today, and this is why it was distributed.

Oh, pardon me, there's confusion between the name on the cover and—

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Right. That is exactly it, Mr. Chair.

[The Chair, Conservative, Barry Devolin]

It's the same group.

All right. Thank you.

I only have one comment. It was my understanding that Haliburton, where I'm from in Ontario, is actually God's country, and not Manitoulin Island. So that is the only point I would quibble with.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

On a point of order, Mr. Chair, I actually think Nanaimo--Cowichan is God's country.

[The Chair, Conservative, Barry Devolin]

I think we have a majority here.

Anyway, thank you for that presentation and those recommendations.

Mr. Hunter, would you like to make your presentation, please.

[Luke Hunter, Research Director, Land Rights and Treaty Research, Nishnawbe Aski Nation]

Good afternoon to you all. My name is Luke Hunter. I'm the research director of Nishnawbe Aski Nation. I am very pleased to be able to speak to you on Bill C-30, An Act to establish the Specific Claims Tribunal.

First I would like to provide a brief background on the organization that I represent. The Nishnawbe Aski Nation, or NAN, represents 49 first nations within the territory of the James Bay Treaty and the Ontario portion of Treaty No. 5. The James Bay Treaty, also known as Treaty No. 9, was signed in 1905-06 with adhesions in 1929-30.

The treaty covers two-thirds of Ontario, more than 200,000 square miles, spanning from the height of the land to the James and Hudson's Bays, to the boundary of Quebec to the east and Manitoba on the west boundary.

Matters are complicated with respect to treaty land claims under Treaty No. 9, for two reasons. First, the Province of Ontario was a signatory to the treaty and played a major role in drafting and executing Treaty No. 9. This is the only numbered treaty in Canada, of 11 in all between 1871 and 1930, to have had full participation of the provincial government in the drawing up of its terms and negotiations with the first nations.

I want to begin by quoting a recent court case that involved a first nation and a resource development company. It was a dispute over lands and resources.

Paragraphs 79 and 80 of Mr. Justice G. P. Smith's reasons for judgment, on July 28, 2006, commented on the special relationship that first nations have with the land in awarding an injunction in favour of a first nations community known as Kitchenuhmaykoosib Inninuwug, commonly referred to as KI.

The quote is:

Irreparable harm may be caused to KI not only because it may lose a valuable tract of land in the resolution of its TLE claim, but also, and more importantly, because it may lose land that is important from a cultural and spiritual perspective. No award of damages could possibly compensate KI for this loss.

It is critical to consider the nature of the potential loss from an Aboriginal perspective. From that perspective, the relationship that Aboriginal peoples have with the land cannot be understated. The land is the very essence of their being. It is their very heart and soul. No amount of money can compensate for its loss. Aboriginal identity, spirituality, laws, traditions, culture, and rights are connected to and arise from the relationship to this land. This is a perspective that is foreign to and often difficult to understand from an non-Aboriginal viewpoint.

Many of NAN's claims arise from the manner in which the treaty was made. The reserve provision of the treaty, for example, was understood in tandem with the belief that harvesting in the traditional territories would not be interfered with. Will the tribunal take into account the oral history surrounding the making of the treaty and the verbal promises made by the treaty commissioners?

The proposed tribunal seems best suited to address the current problems that the government is experiencing, i.e. the backlog in resolving land claims, rather than addressing the first nation's concerns. The proposed tribunal cannot address that many of NAN's claims stem from the making of the treaty itself, which are confirmed by the oral history and the recorded promises contained in the diaries of the treaty commissioners.

The tribunal will only deal with issues involving matters that arise from the Indian Act, such as failures of the federal government regarding the administration and management of lands and other first nations assets, including trust funds and breaches of the Indian Act. Some of these examples include land expropriation, illegal surrenders, road and railroad corridors, timber, and other band assets.

The tribunal cannot address claims where the province arbitrarily amended reserve boundaries in the post-treaty years as a result of the third party interests, or the creation of provincial parks or federal parks wholly encompassing reserves, despite the promise that first nations could continue to live as they and their forefathers had done.

Since 2001 NAN has begun researching treaty land entitlement claims that involve land, and therefore Ontario's involvement to resolve them. How will this proposed tribunal help NAN, since Ontario does not have to be a party and can choose to ignore the tribunal altogether?

The Ipperwash inquiry in Ontario recommended the creation of a commission of Ontario that would assist Canada, Ontario, and first nations to negotiate settlements and land claims. How will Canada work with Ontario to ensure that the federal specific claims process, the tribunal, and the TCO commission of Ontario work together?

There is no mention in the proposed Specific Claims Tribunal Act of how first nations are to be funded in order to appear before the tribunal. Will first nations receive funding to bring claims to the tribunal?

It is a concern that the tribunal will make orders of costs. An example is in subclause 12(3) of the bill. It states that:

The Tribunal’s rules respecting costs shall accord with the rules of the Federal Court, with any modifications that the Tribunal considers appropriate.

Costs generally flow from the event, meaning that the losing party pays the costs of the winning party. Will first nations have to pay Canada's costs if the tribunal rules against their claim?

The current draft bill also assumes that once a tribunal makes a decision the claim is settled once and for all; therefore, if a claim involves land issues, Canada's legal obligation is discharged and released at the time of the tribunal decision. In essence, it has the same effect as an extinguishment policy inherited in the current specific claims policy. No first nation will ever agree to take a specific claim to a tribunal involving land. When the Government of Canada appeared before this committee it made references to first nations purchasing land using settlement moneys from a third party interest, and those lands could be converted to reserve lands. There is no mechanism in this bill for this to happen other than the political accord that was signed between the minister and the AFN.

These are my comments to the draft bill. l've raised some serious issues and shortcomings of the proposed legislation.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Hunter.

I'm glad to say we have been joined by Grand Chief Denise Stonefish.

Thank you for being here. Perhaps you could make a brief five-minute presentation, please.

[Grand Chief Denise Stonefish, Association of Iroquois and Allied Indians]

Thank you for this opportunity.

The Association of Iroquois and Allied Indians was established primarily as a political organization in 1969 to represent its members in relations with any level of government affecting the well-being of the members as a whole. The association currently represents eight member nations, with a combined membership of approximately 20,000 people. These include the Batchewana First Nation, Caldwell First Nation, Delaware Nation, Hiawatha First Nation, Mississaugas of the New Credit, Mohawks of the Bay of Quinte, Oneida Nation of the Thames, and the Wahta Mohawks.

Again, the association provides political representation and policy analysis, and AIAI is committed to protect, defend, and enhance the inherent rights of our member nations.

First, the association would like to acknowledge our disappointment with the Assembly of First Nations and their decision to submit this new legislation for consideration by Parliament. AIAI feels that AFN did not have such a mandate for this action and wants this to be acknowledged. We feel there was an important consultation function that was not performed. The AFN was mandated by resolution 08/2007 and 23/2007, which I have attached to our package.

Both resolutions speak to a mandate of advocacy for a new specific claims process, but nowhere do they state that AFN has the authority to make decisions on behalf of first nations, that they have the authority to agree to develop the process, and/or that they have the authority to submit such significant legislation to Parliament for consideration.

It was always our understanding that AFN would work on developing a new specific claims process with the Government of Canada, but that before any serious movements were made on a new process such as a submission of the bill for consideration, that first nations could and would review the bill. This important consultation never occurred, and the association is adamant that it should have occurred and that the AFN had no mandate to move it forward as it did.

When the AFN passed resolution 50/2007, which is attached, the AIAI chiefs and/or proxies opposed this new resolution, which encouraged first nations to review Bill C-30 and forward their views to the crown and the parliamentary committee on aboriginal affairs. First nations should have been consulted before this legislation was submitted to the parliamentary process. At this point, the only option first nations have to be consulted is in this committee forum, and therefore our decision-making ability has been taken away from us. We are now at the mercy of the parliamentary process.

On the importance of land, Canadians have seen, over the years and decades, first nations peoples working and fighting for the return of their lands. Some first nations peoples make use of the avenues of advocacy set up by the Canadian government, and some resort to the infamous tactics of blockades and protests. First nations people work and fight for land because it is so important to our way of life and to our people's physical, mental, emotional, and spiritual survival. Canadians may never fully understand the connection first nations feel to our land. Because of the importance of land to first nations people, it's difficult to put it into words.

Keith Basso, an anthropologist, describes the impact of depriving peoples of their connection to the land. He says:...deprived of these attachments...

--meaning connections to places--we

find ourselves adrift, literally dislocated, in unfamiliar surroundings we do not comprehend and care for even less. ...sense of place may assert itself in pressing and powerful ways, and its often subtle components--as subtle, perhaps, as absent smells in the air or not enough visible sky--come surging into awareness. It is then we come to see that attachments to places may be nothing less than profound, and that when these attachments are threatened, we may feel threatened as well. Places, we realize, are as much a part of us as we are a part of them....

Keith Basso nicely articulates the deep-rooted connection that first nations people feel to our land, and it is very much a part of who we are.

Now, here are our comments on Bill C-30. The association understands that, if passed, Bill C-30 would continue to deprive first nations peoples of their attachment to their land and to their places. The most damaging aspect of Bill C-30 is about the monetary compensation and not about the land. AIAI understands that there is an initial negotiation process that could have small possibilities of resulting in settlement that includes land. However, we also understand that this is highly unlikely.

When negotiations fail, which they certainly will in most cases, the claim will be moved to the independent tribunal process for a decision. The tribunal has no authority to award land. Subclause 20(1) of Bill C-30 outlines the basis and limitations for decisions on compensation. It is this clause that states that the tribunal will only award monetary compensation, that this compensation shall in no way exceed $150 million, and that it shall not be given out for punitive and exemplary damages or harm or loss, including those of a cultural or spiritual nature.

Not only is this process not about land, but it is also not about the things that the land informs, such as culture and spirituality. These are important aspects of the way of life for first nations, and they are also being removed from the factoring into this process.

AIAI is not willing to support a specific land claims process that has no true ability to return land. Our communities are not focused on money, although we will concede that money does play a role in land claim settlements.

At the core of land claims is the land and our connection to it. This is what we would like the Standing Committee on Aboriginal Affairs and Northern Development to remember when reviewing Bill C-30, the Specific Claims Tribunal Act, an act that has no real ability to settle land claims in a manner that will honour our connection to the land.

We share our comments with the committee in hopes that our grave concerns do not fall upon deaf ears. The association recommends that Bill C-30 be withdrawn.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Grand Chief Stonefish.

If I can clarify on the briefings, we've had three different presentations. The first presentation that shows on our list was from the Union of Ontario Indians. There was a brief submitted that was translated and was circulated to members just today. The NAN, the Nishnawbe Aski Nation, made a presentation but did not submit a brief, so there is no brief attached to the second presentation. The third presenter, Grand Chief Denise Stonefish from the Association of Iroquois and Allied Indians, submitted a brief today, but it has not yet been translated; when it has been, it will be distributed.

Members, you currently have one of the two briefs that you will have when this is completed.

Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Chair, could we have Grand Chief Stonefish's brief when it has been translated? As well, would Grand Chief Hunter like to submit a brief, it does not have to be today, so that we can have it to read and study afterwards?

[The Chair, Conservative, Barry Devolin]

To answer your question, in terms of the brief from Grand Chief Stonefish, the answer is yes, we will receive it. In terms of Mr. Hunter, to my knowledge there is no formal brief. The presentation that was made today will be part of the transcript of this meeting. So that's the leave-behind, I guess, from your presentation today.

Just to remind members, some of the witnesses who will be appearing before us this week and next week received relatively short notice to come here. People have had to juggle their schedules. We appreciate the efforts that have been made to appear here to prepare a presentation. If in addition to that they were able to put it into a written brief, that's great, but I suspect over the next couple of weeks we will have maybe more than one witness who will make a verbal brief but won't have something written, for that reason.

Anyway, thank you for the presentations.

We're going to begin our questioning now. Basically, for the first round of questioning committee members are given seven minutes, and that's a combined seven minutes to ask questions and for you to respond. I will cut it off fairly quickly after the seven minutes, so that more of our members get a turn. After the first round, in which each caucus will have one turn, the rounds are five minutes long in the second and third rounds, as opposed to seven minutes in the first round.

I'd like to begin with Todd Russell from the Liberal Party.

[Todd Russell, Liberal, Labrador, NL]

Good afternoon. I thank you all for appearing before the committee. I certainly want to commend you on your presentations.

To the Union of Ontario Indians, with Deputy Grand Chief Hare, I certainly appreciate the fact that you've itemized some of the amendments you would like to see and the rationale behind them. That certainly makes our work very easy in terms of progressing if we as a committee decide to go in that particular direction.

As well, I appreciate the comments of Mr. Hunter and Grand Chief Stonefish.

One of the first questions I raised with the minister when he was before this committee talking about Bill C-30 was the issue of land and the prohibitions within certain phases of the Specific Claims Resolution Act that, once you go to a tribunal, you can only compensate people in a monetary fashion. The minister's response basically was, listen, the federal government doesn't own any land, or what we do own is so minuscule that it really wouldn't have much of an impact, because we can't award it; we have no jurisdiction to award it.

But I still think this is a major issue that's reflected in each of your presentations, and I wonder, with the way the bill is structured and the language that's in it, will first nations themselves be willing to engage in this process with that prohibition in place, the fact that you cannot compensate with lands? They can only compensate from a monetary perspective. Will people be less willing to engage in this process? If the bill goes through as it is, will people be less engaged?

I wonder about section 91.24 of the Constitution, which says that the federal government has responsibility for Indians and lands reserved for Indians. That might not necessarily be the boundaries within which people operate now or have been confined to by the various historical incidents, happenings, laws, people taking the land, that type of thing.

I'm looking for more clarification on this from each of you. What I want to know is, are you going to be willing to engage? If this bill goes through, will people engage? If people don't engage, what's the use of it?

Secondly, how comfortable is anybody with one judge being the final arbiter of any claim that you put forward, if you went to the tribunal? There's only one judge—not three, just one. I'd like to know that.

[Eliza Montour, Treaty Research Council, Union of Ontario Indians]

On the land issue, we have some recommendations in our brief, particularly with respect to subclause 21(1).

What we're providing there is that based on the fact that there's a jurisdictional matter that occurs between the feds and the province, we understand this. That's why we're recommending that a working group of some sort be established with the province to talk about the issue of land, just like in the political accord between the feds and the AFN. That's one of the suggestions in our brief.

But the other suggestion we're putting forward is that even though there's going to be compensation awarded from the tribunal, the first nations essentially get a right of first refusal to that land. It's almost like how the federal crown or the province is vested in every piece of land across Canada. We're thinking that a first nation claimant could have a vested interest in that land--not to take away from third party interests, but if it ever comes on the free market, on the willing seller and willing buyer policy, they can have the right of first refusal. Because what we're looking at right now is situations where people are refusing to have first nations purchase the land. So we're kind of getting into those issues.

As to your question, do we think the Union of Ontario Indians, our member nations, would participate in the process, yes, I do think we would still participate in the process, even with the land. We're just hoping that we can work down the road to have that reviewed again.

That's one of the things we're recommending for clause 15, that there be an addition to that clause, a subclause 15(5) that says, let's look at it, review it after about three years, to see whether we can focus on anything besides the monetary compensation.

[Todd Russell, Liberal, Labrador, NL]

Okay. Thank you.

Mr. Hunter, would you comment?