Indigenous and Northern Affairs Committee on March 3rd, 2008

[Chief Lawrence Joseph]

I would hope that any judge or any individual who has attained the right to be a judge is honourable and would make their judgments unbiased. And certainly we do have expectations that every judge who is selected will be very responsive and sensitive to our regions.

Ideally, as I mentioned before, sir, it would be somebody who knows the terrain—the politics, the culture, and the traditions of Saskatchewan—who we'd like to see there.

As far as getting in touch with all of the communities is concerned, I think it's never 100%, but certainly we are very fortunate to have 11 tribal councils in the province of Saskatchewan where we can actually bring the chiefs together and give them the dialogue and the information as much as we can. We also have four vice-chiefs who go out in the territories to talk about these things.

But on the issue of dialogue, we are very fortunate. This is one organization in Saskatchewan that is united, with the exception of one band, and we are able to do this.

I think information is powerful. When you give information to chiefs, based on mutual respect, and council members...that's what the Government of Canada showed us when they came to us and offered this. I think it was our duty to pass that on to our communities, and certainly we made our best effort on that.

I don't know if I answered your question, but I understand what you're saying. We do have communication departments and also a way to talk to our chiefs.

I wouldn't be so confident, sitting here, sir, if I didn't have a resolution attached to that.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I apologize for interrupting. Since I have very little time left and since my colleague would like to ask you an additional question, I will give him time to do so.

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

I read the resolution of the Federation of Saskatchewan Indian Nations, and I find it very interesting. Given the amount of time we have left, I will ask you one final question.

If you could make one amendment to improve Bill C-30, what would it be?

[Chief Lawrence Joseph]

I'll go to my technician to answer that one.

[Jayme Benson]

Obviously it would be to remove the $150 million cap so that all claims are under the jurisdiction. The biggest weakness of the bill is that there are some claims that will fall outside of it.

So when you're looking at the bill itself, it's good, but it doesn't address everything. I think a commitment to deal fairly with those claims that fall outside of the jurisdiction is really important outside of the bill itself. Certainly those claims should not be treated worse than they are now. There shouldn't be something like technical defences applied to them that aren't applied to claims under $150 million.

So in terms of the bill itself, I think it's reasonably good. I don't think we'd oppose an amendment, say, to a tribunal of three as opposed to one. This is good; that might be better in some ways. The downside would be that if there are three judges per panel, you might have fewer panels, so it may slow down the resolution of the backlog. So it's not something we'd oppose, but....

The jurisdiction is probably, for claims that fall outside, the biggest concern, but that's for another process.

[The Chair, Conservative, Barry Devolin]

Thank you.

Mr. Benson has learned from the committee members to avoid looking at the chair when he's giving his answer. My colleagues have taught him well here, in less than an hour, how to get a little extra time.

But I want to thank our witnesses who have been here today. This has been a very good conversation we've had for a little more than an hour.

The committee will suspend for five minutes so that the Manitoba delegation can come forward.

[The Chair, Conservative, Barry Devolin]

I'd like to call the meeting back to order.

Before we go to our witnesses from Manitoba, I want to remind colleagues that in the next few minutes we will be joined by a group of members of the aboriginal and church leaders tour. You may recall this afternoon that they were introduced by the Speaker in the House at the end of question period.

They have been at a reception between then and now, but they wanted to pop by and say hello to us. They're not on our formal agenda today, but it's my understanding that sometime during the next hour they will be coming in here. They would like to witness part of the committee meeting today while they're in town. At the end of our conversation with our guests from Manitoba, I will formally welcome them here and wish them well in their endeavours.

With that, I'd like to move on to the second panel of our meeting today. As I said earlier, we are working our way around the country dealing with leaders from different umbrella organizations on a province-by-province basis.

This afternoon I'd like to welcome for panel B the Manitoba Keewatinook Ininew Okimowin, Grand Chief Sydney Garrioch, and Louis Harper, legal counsel.

Gentlemen, if you'd like to make a presentation to us at the beginning, then we will move into a round of questioning from our members.

Grand Chief.

[Grand Chief Sydney Garrioch, Manitoba Keewatinook Ininew Okimowin]

Thank you, Mr. Chair, members of the standing committee.

Tansi, Boozhoo, Edlanet'e, good afternoon.

Before I proceed with the presentation, I want to acknowledge the past chair, the member of Parliament Colin Mayes. We had a good working relationship with him. We are trying our best to continue with the work and to bring out the subject issues whenever possible.

On behalf of the 30 northern Manitoba first nations and the 56,000 first nations citizens represented by the Manitoba Keewatinook Ininew Okimowin, I would like to thank you for the opportunity to do this brief presentation on Bill C-30, the Specific Claims Tribunal Act, on the meaning of the treaties and the honour of the crown, and on the mechanisms needed to resolve first nations' specific claims.

Our forefathers, as representatives of our sovereign nations, entered into treaty arrangements with Her Majesty the Queen based on the recognition of our status as sovereign nations and as holders of aboriginal title to our ancestral lands. The MKO first nations entered Treaty No. 4 in 1874, the Qu'Appelle treaty; Treaty No. 5 in 1875-1910, the Winnipeg treaty; and Treaty No. 6 in 1876, the treaties of Fort Carlton and Fort Pitt; and Treaty No. 10 in 1908.-

Establishing a joint independent process for the resolution of disputes and claims between the treaty signatories is consistent with the terms of treaty and the promises of treaty commissioners. Establishing a joint and independent process for the resolution of disputes and claims is also consistent with upholding the honour and fiduciary duty of the crown. The creation of the joint mechanism to resolve claims arising from broken promises of the treaties is also consistent with a special treaty relationship in contemporary form, reflecting changing events and the evolving needs of our respective nations.

Prior to the tabling of Bill C-30 by the Minister of Indian Affairs and Northern Development on November 27, 2007, the MKO first nations, other first nations, and several committees, inquiries, royal commissions, and joint task forces had repeatedly called for a better process to resolve specific claims that will be jointly arrived at through the mutual consent of first nations and Canada, truly independent of perceived or actual undue influence by the Government of Canada, and effective in resolving claims and in upholding the honour of the crown.

The Manitoba Keewatinook Ininew Okimowin continues to be supportive of the objective of establishing such a process. It is with great regret that MKO must advise this committee that the mechanisms proposed under Bill C-30 will neither be joint, nor independent, nor effective; nor will Bill C-30 uphold the honour of the crown. The MKO does not support the legislation the way it is.

On November 27, 2007, the AFN and INAC entered into a specific claims reform political agreement to address claims-related matters of importance to first nations that are not addressed by Bill C-30. For example, the minister has agreed to review revisions to the additions to reserve policy that would provide for reacquisition and replacement of those lands.

Bill C-30 and the AFN-Canada specific claims reform political agreement do not address the majority of outstanding claims, for example, the Northern Flood Agreement; treaty land entitlement, as well as the north of 60 disputed lands that exist; and they do not address claims-related issues affecting the MKO first nations, such as claims involving Canada related to the delay in implementation of existing treaties and agreements, claims to resource revenue sharing and compensation for infringements of harvesting rights, and outstanding claims arising from the adverse effects of resource development.

Despite the federal and provincial government commitments and the announcement of the Canada specific claims action plan and Canada's reporting in the September 2007 Public Information Status Report - Specific Claims Branch that the treaty entitlement shortfall claims of Manitoba first nations had been settled, there continues to be significant delay in the implementation of the Manitoba Treaty Land Entitlement Agreement, particularly due to eligibility issues and the resolution of third party interests.

While the “number of acres transferred” is applied by government as a measurement of progress, MKO asserts that the most relevant indicator is the total number of parcels of land transferred and converted to reserve. For example, out of 450 parcels of land currently selected as of July 2007 under the Manitoba TLE Framework Agreement, at least 260 selections, or more than 60% of all selections, continue to be delayed due to disputes regarding eligibility issues, the resolution of competing and third party interests, and the determination of easements in favour of Manitoba Hydro.

With respect to the agreement with Island Lake Tribal Council first nations, at present, all of the 100,000 acres in crown land entitlement has been converted to reserve. However, very little of the 100,000 acres of land to which the Island Lake first nations are entitled to hold in fee simple, for later conversion to reserve, under the Island Lake Treaty Land Entitlement Agreement have been purchased.

There are two parts to that. One is that they have converted that 100,000; the other 100,000 are still in fee simple and still have to be purchased.

MKO has advised Canada and Manitoba that persistent abuses of crown authority and a refusal by both the federal and provincial governments to identify and resolve issues in a manner consistent with the honour of the crown and in a spirit of good faith and compromise are perhaps the most significant causes of delay in the conversion to reserve lands of the majority of disputed parcels under the Manitoba Treaty Land Entitlement Framework Agreement.

The continuing abuses, delays, and disputes over treaty entitlement lands in Manitoba may in the future become a large number of additional unresolved specific claims.

Now I'll pass it over to Louis Harper, the legal counsel for MKO.

[Louis Harper, Legal Counsel, Manitoba Keewatinook Ininew Okimowin]

Good evening, ladies and gentlemen.

Further to our presentation and more specifically to the legislation itself, by settling the specific claims only by payment of moneys and by imposing the release and extinguishment of first nation interests and rights in lands, Bill C-30 will have the effect of extinguishing those interests and rights of first nations. The honour of the crown requires the recognition and the continuance of aboriginal title and rights and treaty rights and demands the replacement and restoration of first nation lands, particularly where such lands were part of the original bargain between Her Majesty the Queen and first nations to reconcile aboriginal title.

In other words, what we're saying in our presentation is that not only should there be compensation if first nations wish to be compensated through monetary means, but the importance is replacement of those lands, that the land is very important and there shouldn't be a continuance of extinguishment of those rights.

On February 6, 2008, the minister advised this committee that the federal government usually doesn't own any land anyway. Usually land is not part of it, he said. However, the 2003 “Resolving Aboriginal Claims” report reveals that of the $1.7 billion and the 3.5 million acres of land in specific claim settlements as of March 31, 2003, the federal government's share was $1.5 billion and 2.5 million acres of land, or 88% in cash and 72% of the total settlement lands. So we say the honour of the crown requires that Bill C-30 be amended to broaden the scope of the tribunal's decisions to include the restoration and the replacement of lands.

The rights and interests of first nations, MKO treaty first nations, in traditional lands and reserve lands also include the cultural, spiritual, social, and economic rights and interests based on our customary law; also the rights and interests arising from aboriginal title, including unresolved aboriginal title, such as air—air is considered an aboriginal title because it was never extinguished—and of course there's that issue with water, as well, that is unresolved treaty business in Manitoba; rights and interests arising from the reconciliation of aboriginal title through the terms of treaties and agreements; rights recognized and affirmed by the Constitution of 1982; beneficial interests under subsection 18(1) of the Indian Act, which are the lands reserved for Indians.

The doctrine of the crown to seek first nation consent is very important when addressing rights in lands and has existed since 1763. It was reflected in the treaty-making process and is reflected in the requirements for surrender under paragraph 39(1)(b) of the Indian Act. First nations hold interests and rights in lands, including those that are recognized and affirmed by section 35 of the Constitution Act of 1982. The courts have established that these rights are held collectively by our first nation communities.

Subclause 21(1) of Bill C-30 represents a prima facie unjustifiable legislative extinguishment of our rights and lands whenever a decision of the tribunal causes the release of all interests and rights to the land unless the citizens of the first nation have first provided their consent to the release and extinguishment of such interest and rights. It is not within the power of Parliament to unilaterally extinguish any of the constitutionally protected rights in lands of first nations without the consent of the holders. And that is our position within the MKO region, that the consent of our people is very important before there is any extinguishment of those rights.

As can also be seen in the specific claims process flow chart, which is appendix B of the December 2006 report of the Senate committee on aboriginal peoples, there is a progression of first nation consent required in the existing specific claims process.

A specific claim can be filed with the minister by a first nation or by a lawyer on behalf of a first nation. A band council resolution is required to accept the minister's offer to negotiate a claim. Consistent with Canada's constitutional doctrine and practice, a membership vote may be required to ratify certain specific claim settlements, particularly if the rights of the first nations are affected by the proposed settlement.

So you can see that throughout history when Canada has dealt with first nations there's been an element of consent, a requisite that people's consent is required before disposition of lands and rights pertaining to land.

The potential for an unjustifiable parliamentary extinguishment of rights in lands through subclause 21(1) of Bill C-30 is not remedied by the voluntary filing by a first nation of a claim with the tribunal. The release of first nation interests and rights in lands can be given effect only after a majority of electors of the first nation provide their consent or assent to the tribunal decision.

That is an important factor and recommendation by MKO, that prior to the filing of the claim to opt for the tribunal there should be a referendum by the first nations to say that they are in agreement to file for the tribunal option.

Also, if it goes through, prior to the decision being rendered by the tribunal they should be seeking that approval by the first nations.

We mention also that there should be consultation with first nations with regard to the whole tribunal process.

[The Chair, Conservative, Barry Devolin]

Mr. Harper, could you just wrap it up in a few minutes, please?

[Louis Harper]

Okay.

I don't know if you have our presentation. On page 4 we have the recommendations from MKO.

The first recommendation has to do with the fact that we require clause 21 to be amended to reflect that there be a referendum process by our people. There's a recommendation to address the interests of first nations in restoring and replacing lands, which is very important. Also reflected in the amendment is a provision in the bill itself with regard to the reacquisition of lands and additions to reserve policy.

We are also recommending that clauses 14 and 15 be amended to include within the scope of claims that may be brought before the tribunal “claims arising from delay in the implementation of existing treaties and agreements to which Canada is a party”. This relates to the fact that TLE claims have been considered settled claims, but they continue to be an issue in Manitoba in that the implementation of those settlement agreements continues to be delayed in its process.

Also, of course, we want the amendment of subclause 20(1) to include the restoration or replacement of lands.

That concludes the recommendations from MKO. Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you. I appreciate that you have a lot of ideas that you want to put forward and we have a relatively short period of time.

We'll go to questions now. We will have time for one round with seven minutes per person.

Ms. Keeper, from the Liberals.

[Tina Keeper, Liberal, Churchill, MB]

Thank you, Mr. Chair.

I'd like to thank MKO for presenting today.

In your presentation you made quite a number of recommendations. Are there one or two priority items that you're adamant should be in this bill?

[Grand Chief Sydney Garrioch]

The first priority item, which isn't written there, is on the consultation process for first nations. It needs to be informed, consulted, and give consent. That's one.

Number two is the referendum. The reserves are owned collectively by the first nations people--the majority. So that needs to be put in place, as well as the process established for that exercise.

[Tina Keeper, Liberal, Churchill, MB]

Could you give us a little more detail on differentiating between the consultation process you're recommending and a referendum process?

[Louis Harper]

As you know from the Supreme Court decision, the duty to consult is very important to us, and I think the decision by the Supreme Court favours first nations in that regard.

On the consultation, from looking at the bill itself...I guess we didn't have the opportunity to review the bill line by line at the regional and local levels. I think that's very important to our people. This is a Supreme Court ruling, and if any legislation infringes on our rights we should be consulted. Certainly this bill will ultimately infringe on our rights.

The other aspect is the replacement of lands. That is so important to our people. We're not talking about fee simple lands replacement. We're talking about protected lands, replacement of those lands that were taken away, and being protected under the Constitution of Canada.

[Tina Keeper, Liberal, Churchill, MB]

I'd like to continue that thought. This process doesn't have a ratification or referendum process built into it at all. So that ratification or referendum process, which was part of the old specific claims process, was important for that very reason--because of the extinguishment of aboriginal and treaty rights. Is that right?

[Louis Harper]

There's a potential for extinguishment of our rights through this process without the due course of involving the very people who are going to be impacted. I think that's why it's important to get their consent prior to releasing or extinguishing those rights to land.

[Tina Keeper, Liberal, Churchill, MB]

That is the standard process as well, right? I understand it's part of the Indian Act that these types of agreements--for instance, the Northern Flood Agreement--include a ratification process to which you're legally bound.

[Louis Harper]

That's very correct. Also in the Indian Act, with regard to surrender of lands, there would a referendum by the people.

[Tina Keeper, Liberal, Churchill, MB]

On the duty to consult, we just heard from Chief Joseph, who was part of the process. He said it was built into the process that they were not able to share certain information. He found it difficult or challenging at times to not be able to share detailed information with the people in the Saskatchewan region.

We in Manitoba maybe did not have that kind of participation in the process. There was not the ability through that process to always inform the people. It seems that there's inconsistent access to information that doesn't really meet the duty to consult. I'm not sure, I'm just asking.

[Louis Harper]

Are you referring to the bill itself and the lack of consultation?

[Tina Keeper, Liberal, Churchill, MB]

Yes. I mean the process of developing the bill and people being informed about it.

[Louis Harper]

At the local level, if you asked an ordinary resident of a reserve they wouldn't understand the bill itself; in fact, they would tell you they didn't know anything about it. That goes to show that there is a lack of consultation.

If you want true consultation with our people, you should do the same thing as you do with the French and translate the wording of the legislation so our people understand what's in there. Not only that, but at our regional level where our role is to advocate for our people, we need to have a chance to go line by line and look at the implications of each of those provisions in the bill. We did not have the opportunity to do that.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Harper.

Monsieur Lemay.