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

[Luke Hunter]

When we talk about land, we don't necessarily distinguish between the federal government and the provincial government. We view it as crown land.

As we all know, in the communities I represent, the Nishnawbe Aski Nation, although it's provincial crown land, there are large tracts of land still available. By “available”, I mean there is still not enough development. Although there is development going on, there are still large lands available. From that perspective, land is available; from our perspective, why shouldn't the tribunal be able to make that decision?

In terms of the narrow point of view regarding treaty land entitlement claims, it's my view that it does not matter that the third party holder, currently Ontario, would have a say on the allocation of reserve lands.

When you look at the reserve provision clause in the treaty, it's the federal crown that provides that legal obligation to provide reserve lands. The federal government can go ahead and say to a first nation, “You have so many acres under your entitlement, so we're prepared to award you that land”; the province would have no say, even though they own.... I suppose it's presumed to be under their jurisdiction. They say they own the land, but I'm pretty sure it can be accomplished.

As to your question regarding the use of a tribunal, I think if it involves land, especially the large tracts of land.... In our case some of our treaty land entitlement claims are large, and I'm pretty certain that first nations wouldn't want to take the risk of taking that to a tribunal. If it's a smaller claim regarding timber or a legal decision or a small amount of assets, yes, it's a useful tool.

So I suppose the short answer is yes, but it would be minimal. If it's talking about land, no, it's too risky.

[The Chair, Conservative, Barry Devolin]

Okay, thanks.

We're well over seven minutes, but if Grand Chief Stonefish would like to add something, we'd like to hear from her.

[Grand Chief Denise Stonefish]

I'll try to be quick.

In answer to your first question, first of all I would like to say that we do appreciate the work that has been done between the AFN and the Government of Canada. As I said, our concerns are mainly about having our opportunity to review the bill and have some analysis done on that so that we can potentially support the bill, but as it was only presented to us on December 6, it just didn't give us much time.

In answer to your questions, if the bill goes through, yes, probably our first nations will more than likely utilize the process, but again there are going to be concerns about the $150 million cap. Preliminary comments ask about land claims over the $150 million and about the potential for the government to channel all claims via the tribunal process. Those are a couple of the concerns that have been expressed.

How comfortable are first nations with the potential of one judge? Well, I'm not sure, but I'm going to say personally, no, not one judge. We've always said that two heads are better than one, or three heads are better than one, so I think there probably should be more than one judge.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

Monsieur Lemay is next.

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

I am going to try to ask precise questions. Perhaps I will have time to ask others when everyone else has had their turn. Your comments today are extremely important and interest me greatly.

Mr. Hunter, I come from the other side of Lake Abitibi. So you and the Algonquins are our next-door neighbours. Did Treaty No. 9 not include a way of settling the question of the traditional lands of the First Nations who lived there?

I am going to ask my questions and then let you answer, Mr. Hunter, just like the other members. Ms. Stonefish has already begun to answer.

In Grand Chief Hare's brief, I saw the amendment to subsection 6(2) that he recommends. The Union of Ontario Indians, the Anishinabek Nation, goes quite far, to the point of saying that the tribunal should include lay people and legally trained people, as well as Superior Court judges. I would like to hear what you have to say about that. Why is this your recommendation for amending subsection 6(2)? If I get the chance, I will come back to this. I have read your briefs and this interests me greatly.

I also have a question for you, Ms. Stonefish. I understand that land claims are extremely important, especially for the Iroquois and especially in southern Ontario. How do you think this bill could improve the settlement of land claims for your communities, given that the process has been going on for almost ten years and no one can see the end for several more years? Could this bill at least help move the matter forward?

I am anxious to hear what you have to say.

[Luke Hunter]

I didn't really quite understand your question, but what I think I hear you saying is that Treaty No. 9 has provisions regarding the way to settle traditional lands or land claims. Yes, I think it has, so it's a question, strictly speaking, of Bill C-30.

One of the problems I see with Bill C-30 is that once you start negotiating anything to do with land and take it to a tribunal, you cannot be awarded land. It's only compensation—money. Once that tribunal makes a final decision, all legal obligations are discharged.

Who's to say someone from the federal government won't say, “We have dealt with your land issue and we have no legal obligation in the future to provide land”? That's the major obstacle that I see with the bill.

Yes, strictly speaking, in general terms the treaty provides an avenue for a direct government-to-government relationship regarding how we use land. But Bill C-30 it does not provide that mechanism or avenue to address major treaty issues.

[Deputy Grand Chief Glen Hare]

Just seeing a panel of more than one, we feel that we want different ideas and individuals who know who we are, where we come from, and how we do business, versus having one person doing the decision-making, especially on this topic. This comes from consultations with our leadership--the 42 member chiefs who we're here on behalf of. They also raise the concern that there should be more than one so we can have a fair decision-making process on our behalf.

[Grand Chief Denise Stonefish]

You asked if the bill will move the settlement along for claims made over the last 10 years. It's unfortunate that if the federal government has no land or jurisdiction to award land, we are again at the mercy of the parliamentary process, and our member nations, or at least some of our member nations, would utilize that to move these claims along.

Unfortunately, even though we spoke specifically to the role that land plays in our communities, we know that southern Ontario is being developed on prime agricultural land. All these urban centres are expanding far more than I think they should, but where are you going to put all those people? Therefore, in southern Ontario there is greater potential for no land to be available, and we would probably have to utilize the land claim process.

When I made my recommendation that Bill C-30 be withdrawn, it was so we could have the opportunity to provide a proper analysis and address the concerns that are being questioned of us today.

[The Chair, Conservative, Barry Devolin]

Thank you.

Ms. Crowder.

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

Thank you, Mr. Chair.

Thank you for coming before the committee today.

A number of your recommendations or concerns are covered in the parallel political accord and are not actually outlined in legislation. Some are around appointments to the tribunal and how that process happens; reacquisition of land and additions to reserves; the treaty process, looking at things that are currently outside the specific claims legislation; and future work.

When the minister came before the committee I asked him specifically how people could have any comfort that an actual political accord would be followed up on. The minister said it was a political commitment to a political accord. Because it's a political commitment, I would think that any minister who holds this job would want to follow through on it. To break that would be very unwise.

I want to talk very briefly about the history and get your comments about your comfort level with the political agreement. We have a political agreement that was signed on residential schools. In it there is a commitment that the federal representative will work and consult with the AFN on truth, reconciliation, and apology. Of course, we know an apology is currently being drafted without the participation of the AFN. That political agreement was signed back in May 2005.

There was also a first nation-federal crown political accord on the recognition and implementation of first nation governments. Of course, that was intrinsic to the Kelowna accord, and we know that agreement has been broken.

A parallel political agreement is fairly important to how tribunal members are appointed and first nations are involved in that decision-making about any other problems that are raised around specific claims. What's your comfort level with both the current government and future governments living up to political accords, when we've seen that they've consistently been broken in the past?

That's a fairly political statement, but I think there's a lot of trust involved in asking people to sign on to Bill C-30, and that political accord is tied into it. I wonder if you could comment on that.

[Deputy Grand Chief Glen Hare]

Yes. That's a big question. I'll try to answer as best I can.

First, if I can, I want to go back to the panel, the one panel. We are not asking for our first nation members to specifically be included on that panel. It's just to have different ideas by having more than one person make the decisions there.

For me, and also from where I sit now as the deputy grand chief, we're strong supporters of the AFN. They advocate for us and with us for the residential schools and things like that. You know, we want to be players. We don't want to go backwards. I certainly don't want to ask my chiefs to go that way anyway. We want to move forward. The government we have, it's here, and we have no choice. We have to work together. I like to believe that we're a strong advocate. We stand behind the AFN in what we do and in what they do.

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

My question was more about the political accord. It outlines some fairly specific requirements, but it doesn't have any legal obligation. It's simply an agreement. The political accords in the past have been broken. And because this one is fairly important, I guess I would have preferred to see these things enshrined in legislation, such as an appointment process for the tribunal, for example, and having first nations involved in that appointment process, instead of having a political accord as a parallel process that actually doesn't tie any government's hands.

I don't care who it is. This isn't a partisan remark. It could be any government in power. It doesn't tie their hands to actually involve first nations in selecting the tribunal members, whether it's justices or lay people. There's a political agreement that says we'll consult, but there's no legal mechanism to make sure governments do it.

So I wonder why we wouldn't recommend that it should be included in legislation.

[Eliza Montour]

I think, madam, that some of our recommendations centre around what was covered in that political accord, to strengthen and enhance what the AFN has already done with the federal government. I can't specifically speak to the comfort level, but our recommendations are here. So we're trying to work together and to keep working together.

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

So you'd prefer to see them in the legislative piece rather than just as a political accord.

[Deputy Grand Chief Glen Hare]

Yes.

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

I'll ask Mr. Hunter or Chief Stonefish.

[Luke Hunter]

I think there has been, I guess, political agreement in the past. You mentioned residential schools. I guess most of those resulted either through our legal system or through political pressure from interest groups if there was an issue that needed to be addressed or raised.

Yes, I've read the minister's comments regarding the parallel approach. Also, it is not only the political accord that plays in parallel with Bill C-30. We also have the existing process Canada uses to settle specific claims. The specific claims branch within Indian and Northern Affairs plays a huge role in defining specific claims.

In terms of the political accord, there's no way. It has no legal standing. It's just a tool the two parties made to make sure that Bill C-30 complements what they're trying to achieve. I know that the minister talked about one of the plans to speed the settlement of claims. But in terms of whether a lot of those suggestions in the political accord should be incorporated into legislation, in short, yes, we'd like to see a majority of those incorporated into the tribunal or in some form of NAC, where first nations can take their grievances.

A panel of judges can make a decision on whether first nations are owed land. And it doesn't have to be land; it could be about money or the interpretation of a treaty. That's our major concern regarding land claims. How we interpret the treaty is different from Canada's interpretation.

[Grand Chief Denise Stonefish]

Comfort level? I guess I'll be honest with you and say that for the first nations here, there's always going to be a level of trust that's not there; I guess it's been for too many years. It's going to be hard to change that comfort level.

I can understand that government changes, the people who sit at those tables change, and hopefully it's part of our job that we can eventually educate the members of Parliament as to who first nations people are and what our roles are in this country. Maybe then that trust level will be there.

Yes, accords or political statements are broken, and it isn't necessarily with a change in government; it could be at any time.

To your comment regarding the incorporation of these items into legislation, I understand that legislation is what gives the government its mandate and its roles and responsibilities to carry out certain functions. But what about review and evaluation of legislation? Things, throughout the years, change. If you have a piece of legislation on the books for a number of years and nobody really takes a look at it, then sometimes these pieces of legislation don't keep up with the times.

[The Chair, Conservative, Barry Devolin]

Thank you.

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I want to make reference to how, after spending one meeting in the chair position, Madam Crowder had to fill the quota of partisan rhetoric that she missed from the last meeting. That's understandable. She took on the role in a non-partisan way, so she deserves some commendation for that.

In relation to one of her points concerning political accords, one good thing about this political accord that our minister signed was that it was actually an accord; it actually did have a signature page. I am very supportive of the action taken by that minister, and I know we are going to fulfill the obligations of that signed accord.

Moving on to the witnesses today, I want to pass along my appreciation for all of these witnesses, in light of the fact that the presentations made by all of you are very thoughtful and very interesting from the standpoint of how you approach the argument. I appreciate the logic you're using. I don't always agree with all the points being made; nonetheless, the sentiments that have been brought are sincere.

Perhaps I'll just start with one point, in relation to land. A number of times by a number of the witnesses, the issue of land has been brought up, and how this tribunal won't be able to deliver the awards with an actual land allotment—partly because, of course, as I think was already mentioned, much of the land is held by the provinces.

It's quite easy to see that it would put an unfair burden on this tribunal to attempt to get into a type of negotiation for land. Truly, a cash settlement allows for the first nation to go out and purchase that land, if available, and if not, then there are other opportunities. This is really the only way, in my opinion, that we could achieve this. I'd be interested to hear it, if there were perhaps a suggestion as to how it could be achieved in some other way. But in light of the lands being held by other parties, this is not something I see as feasible, so this would probably be the only approach.

In relation to the above-$150-million claims not being subject to this tribunal, I would like to also raise the point that pulling all those smaller claims out of the current system will give the Government of Canada the opportunity to focus its negotiations on the very large claims, which really represent less than 10% of all the specific claims out there.

My first directed question would be for Mr. Hunter, in relation to the number of judges. I think he made the point about raising that number to three. My question would be this. Because this would cause a very large change in the way judges are appointed and created in terms of their positions in Canada, I think it would slow down this process. Do you believe it would be worthwhile to slow down this process for the inclusion of more judges? Or do you think we should perhaps continue with the one judge?

[Luke Hunter]

Actually, I didn't comment on that at all.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

You didn't comment on that? Okay.

[Eliza Montour]

To answer your question, sir, we're actually making a recommendation that the committee be formed of lay people and legally trained people with subject matter expertise just like superior court judges--and superior court judges.

That roster would be pulling how many judges out...and probably less than six now. We're thinking maybe if you have a tribunal of nine, you'll have three lay people, three legally trained people, and three judges, so you're not actually burdening the judicial system. The three-person panel suggestion or recommendation would be based on our first recommendation's being implemented.

Does that answer your question?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Yes, I think so.

Do you believe that having just a judge making the ruling lends a degree of legal credibility to the actual award?

[Eliza Montour]

We're recommending that the three-person panel be more based on our traditional form of government--on that consensus basis. And legally speaking, if we're talking about a tribunal, they're still going to have that expertise and they're still going to be given that deference. I do believe they can award those high amounts of settlement and still have that expertise behind it legally. So they're still going to have to uphold a due diligence.

Does that answer your question?