Indigenous and Northern Affairs Committee on April 7th, 2008

[Chief Bill Erasmus]

Okay. Thank you, again.

My name is Bill Erasmus. I'm the Dene national chief for the Dene in the Northwest Territories. We constitute 30 communities, ranging from Fort Smith in the south, to Aklavik on the Arctic coast. I'm also the regional chief for the Assembly of First Nations.

Thank you for the invitation to appear before your committee. As you're aware, the work leading up to Bill C-30 has happened over the years. In the early 1990s I was co-chair of the joint task force that originally started working on preparing a bill for the legislature. So I have some background and some sharing that I can do from that perspective.

I'm very pleased to see that over time we're at a point now where the bill is being prepared to come forward, and there's the political agreement that reads with it.

In the Northwest Territories we constitute about two percent of the specific claims that have come forward so far. That is because our people are at different tables. Some people have participated at comprehensive claims negotiations, some at self-government tables, others at treaty talks, and I think people have confidence in those particular tables. Very few specific claims have come forward.

It's fair to say that if those particular tables do not bear fruit, we would have many more specific claims that would come forward. So I think it's fair to make that comment.

As I mentioned earlier, we're pleased that the legislation is coming forward. We know we couldn't get everything in the bill, and the understanding is that the political agreement that comes with it has to be read in conjunction with the legislation. We want to insist that the political agreement be left as open-ended as possible, so that as we go along and as we learn from this experience we can add more to it. So I think that's important.

Over the years we have looked for an independent process, one that takes away from Canada being the judge and jury. I think this legislation goes far in developing that.

I was fortunate to be at the United Nations when the UN declaration on indigenous people's rights was passed in September. I think we can say that this process works within the meaning of that UN declaration, and that gives support to the whole process.

Again, this develops a new relationship between ourselves and Canada, and we're very hopeful this is a positive move. I think this legislation and the process involved is leading to a new relationship, and I think it can be extended with other practices when dealing with other legislation.

Now, I know my time is short. I want to make two comments, and I'm speaking in support of the legislation. If you were to make amendments, there would be two areas that I would suggest you look at. One area is a huge concern.

From the beginning, the whole process was not about money. It was about land. Our people would very much prefer to have land included in the process so that they are able to have access to lands they either lost or are no longer with them.

The other one is the big claims, and I'm sure you've probably heard this from other people. We are very concerned about the cap for claims that are over $150 million. Many of these people have waited a long time. We're talking of legal obligations on behalf of the crown. These are not situations in which you are giving to people who are not deserving.

We would much prefer that these larger claims be included in the overall package.

Thank you, Mr. Chairman.

I'll give time to Mr. Paulette now.

[François Paulette, Northwest Territories representative on the Chiefs Committee on Claims, Assembly of First Nations]

[Editor's note: The witness speaks in his own language.]

I wanted to say my name is François Paulette. I'm a former chief. In the 1970s I became a chief when I was 21 years old. Around 1980, I resigned. I've been a regional chief. I've been involved with a number of treaty and aboriginal rights discussions north of the 60th parallel. I've been involved in the Indian Brotherhood, the Dene Nation, the Berger inquiry....

I just want to say I was involved in a court case, Paulette et al. v. The Queen. I claimed we had prior ownership of territory in the Northwest Territories of over 450,000 square miles of land. That milestone ruling opened a lot of doors for us in the discussion of how to settle outstanding claims north of 60.

I'm from the Treaty 8 area. I've also been involved with the Bourque commission, the constitutional development in the Northwest Territories. I've also been involved with the renewal commission of the AFN and I still continue to advise and work with the national chiefs.

Quite recently I've also been helping protect areas of the Dene north of 60, particularly the national park on the east arm of Great Slave Lake. I've been attending a lot of international conferences dealing with the environment and the protection of Mother Earth.

I've also been involved in this joint task force from the beginning. I must say that from where it's been to where it's at today, there've been a lot of compromises on the way, and we're dealing with legislation before us that may not meet where we left off with the joint task force report in the late 1990s. Treaties 8 and 11 in the Northwest Territories address very specifically that we were involved in non-extinguishment and non-surrender treaties by peace and friendship, that we are to live side by side. Also, people today, when we talk about our land, that's what we talk about. When we say this in my language, it means we cannot really put a price tag on this land we are talking about.

Land is foremost in importance to us. It's the centre of our civilization and our existence. North of 60, as you know, a lot of exploration goes on, and the first thing these big companies that come here want is land. Canada leased them permits to look for these rich resources north of 60.

I want to go back to the national chiefs issue. In Bill C-30 you talk about cash only. I think that really deviates from our principle of talking about land. There's a cap of $150 million. If there is a cap on that and we go over that, what are the options? What are the alternatives? One of the foremost for us is land. We need to go there. We need to be honest and up front, because this discussion on legislation is dealing with parts of treaties.

The other thing I must add is that provincial participation in this process is not there, and that will definitely create a lot of..... Particularly land needs to be addressed up front, because people south of the 60th parallel have to deal with provinces. Since NRTA 1930, the transfer of land has been in the hands of the province, and many times the provinces have a tough time surrendering these rich resources in their territory. So we need to look at that.

I also wanted to say that today we're going through Bill C-30, but if we had the political will, if Canada had the political will, we probably would have dealt with all these outstanding claims. But we're having to resort to legislation to review these outstanding claims.

With that, I just want to thank the committee for listening. I know that we have a very short time here. I want to thank you all for listening to me.

[The Chair, Conservative, Barry Devolin]

Thank you very much, gentlemen.

There are a couple of things before we begin questions.

It is my understanding that the translation will work through the system. If there is a question put in French, what you will hear through your microphone at that end will be the English translation. If that does not happen, just give us a wave and we can have one of the translators come to the table and do the translation that way. That's the first thing.

The second thing, if you notice, is that we actually have some snacks here at our meeting today. Unfortunately, we cannot share them with you. The bad news is that they will be virtual snacks. The good news is that the calories are virtual as well today, for you. So you have that advantage over us.

We will have time for one round of questions. The first turn goes to the Liberal Party.

Ms. Keeper, you have seven minutes.

[Tina Keeper, Liberal, Churchill, MB]

Thank you, Mr. Chair.

I'd like to thank Mr. Erasmus and Mr. Paulette for participating and for being frank.

There has been a recurring concern by first nations that have participated as witnesses about the extinguishment and release of rights to the land. Because so many specific claims are based on the illegal disposition of reserve lands, I actually have two questions about that for you. One has to do with the process itself.

If a claim is rejected for negotiation, it can then be put forward for tribunal process consideration. But the process says that the minister has three years to decide whether to accept or reject a claim. If there is no response from the minister after three years, then it is deemed rejected and there is the opportunity to take it to the tribunal.

Do you feel that there is too much power in the hands of the minister in terms of this whole issue of the land? It seems to me that it puts in the minister's hands the power to decide which claims are going to be negotiated with a possible settlement of land and which claims are going to be deemed rejected and have to go to the tribunal for monetary compensation only. That's one question: Do you feel that there's too much power in the hands of the minister in that regard? And do you have a suggested amendment on the issue of the land and this concern about extinguishment? Those are my two questions.

[François Paulette]

I will speak to the land issue first.

I settled an outstanding claim for my first nation band. The discussion always is around land, because land is the most important. It's our economic future, it's our way of life, our Dene chanie, our culture at hand, that's there. To put it very simply, land was here first; money came after. The money is going to be gone, and land is going to still be here. If we were going to buy land, then land would become very valuable, and people will start to jack up the prices and so on. The Indians are going to be buying land and they're getting all this money. So I think we need to be open.

On the question of the minister, I think if we're going to be creating this tribunal, at the end of the day, the tribunals should be the ones that make the decision.

[Chief Bill Erasmus]

I would just add that in terms of the land, I think if you were to look at an amendment, the onus has to be on the federal government.

When the original land transactions took place, they were with the crown in right of Canada, and not with the provinces. Canada, within this exercise, has to take the lead.

They are now saying that the provinces are a third party. That might not be the case in the Northwest Territories and Yukon and Nunavut, but in other parts of the country it leaves our people in a very precarious situation.

So I think the way to do it is to put the onus on the federal government to take the lead with their section 91 powers over section 92 powers. That's what I would encourage, as well as leaving the door open so that people are able to select lands. And again, as Mr. Paulette said earlier, if the will is there, then we can get creative in developing that.

In terms of whether the minister has too much power, I think one of the things the joint task force was trying to do was to take us out of the minister's hands as much as possible. The fact that you have a tribunal suggests that the minister will either respond very quickly or will take action and move more quickly on the claims. In other words, you'll have fewer situations in which the minister will remain silent and have it go to the tribunal, because they really don't want it to go to the tribunal.

Thank you.

[Tina Keeper, Liberal, Churchill, MB]

Thank you.

My concern is that we have seen this government put these immigration law changes within the budget bill that's currently before us. And again, there is that scope of power for the minister to make unilateral decisions. I hadn't even thought of this until I saw what happened with the budget bill.

When I thought about this whole process through which, if the minister does not respond within that three-year period then it is deemed rejected, my concern was that then the minister can basically decide which ones he responds to for negotiation. I understand what you're saying, that the hope is that this would expedite the negotiation process and the number of claims going through the negotiations process.

There may be an opportunity for an abuse of power if they choose which ones not to respond to, which are then deemed rejected and are not up for negotiation towards resolution in terms of land but are only up for resolution through monetary compensation. That was my concern.

[Chief Bill Erasmus]

We agree with you. As you probably heard other people present, there were compromises when drafting the bill, and that was one of them. We're trying to take as much authority as possible away from the minister through the process.

[Tina Keeper, Liberal, Churchill, MB]

Thank you.

May I ask one more quick question? It concerns the clause in the bill that says a third party cannot force a province to the table. You talked about the section 91 powers over section 92 powers. Could you just clarify that?

[Chief Bill Erasmus]

What I was referring to was that the Canadian Constitution is based on a set of authorities, and the federal government's powers under section 91 generally override section 92 powers.

If you were talking about a family, the federal government would be the parent, and the province would be the child. Especially in the case of going back to dealing with lands and indigenous peoples, it was always handled by the federal government. It was never the province until very recently.

So I think because this is not a normal Canadian case--for example, you're not dealing with Canadians per se, but rather with first nations in a different relationship with Canada and a different relationship within the meaning of the Constitution--I think you can build a special case that says the province needs to be involved at a level as though they were the crown, because that's how they got the lands. And they need to deal with the indigenous peoples in a fair and just manner, consistent with the UN declaration, which talks about redress.

[Tina Keeper, Liberal, Churchill, MB]

Thank you very much.

[The Chair, Conservative, Barry Devolin]

Thank you.

Next is Mr. Lemay, from the Bloc, for seven minutes.

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

I was startled when I heard Mr. Paulette speak. I have also just heard Mr. Erasmus talk about the provinces' obligations.

Do you have in mind an amendment to clause 22 of Bill C-30? I will let you talk because I sense that you are heading in that direction.

Subclause 22(1) states the following:

22. (1) If the Tribunal’s decision of an issue in relation to a specific claim might, in its opinion, significantly affect the interests of a province, First Nation or person, [...]

The drafters of the bill forgot to include the territories, the fact that a territory could be involved, but we can come back to that later.

[...] the Tribunal shall so notify them. The parties may make submissions to the Tribunal as to whose interests might be affected.

I have a very specific question for you. Do you see some way that clause 22 could be strengthened? You mentioned the importance of involving a province in the settlement process. Do you see some way of strengthening clause 22 and if so, what would that be?

[Chief Bill Erasmus]

As I was suggesting earlier, I think we can recognize the authority of the province as it is today, but at the same time, because we're dealing with such a sensitive issue as indigenous lands, Canada ought to take the lead and compel the province to come to the table as if it were the Crown. That would be what I prefer.

In terms of specific language to this, I think we might be prepared to help you look at how you might want to redraft it. At the onset we weren't suggesting specific amendments, but if you were to make amendments, we would be open to talking to you. We have more comments here.

[François Paulette]

I want to add, particularly to land and the treaties.... I'll talk to Treaty 8 and the crown. It's between these two parties that treaties were made. Now, if we are going to do negotiations, these two parties can still ask a third party, which is the province, to come to the table, because these are issues related to treaties--land in particular. That would be another way to do it.

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

That is an interesting solution. However, I did not catch everything you said.

Do you agree with the composition of this tribunal? As I recall, pursuant to clause 6, the tribunal shall consist of superior court judges with final decision-making authority.

[Chief Bill Erasmus]

I think the fact that they are Superior Court judges has brought concern on our part, because there are very few first nation or indigenous peoples who have Superior Court appointments. On the fact that it's a final decision, I think we've always been okay with final decisions, because you want the tribunal to have binding authority, which is something that can be on par with a minister. To date, the authority has always been with the minister, and that's been part of the problem.

You want a tribunal that's fair, that's representative of the Canadian population. It may not be representative, because our people don't have the standing to sit on that committee. That's been a concern we've had all along.

I think that answers your question.

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

Yes and no.

I am interested in getting your opinion on subclause 12(2). The tribunal may indeed consist of sitting superior court judges, but a committee could help the tribunal establish a certain number of rules. For example, the tribunal could hear the views of elders. We know that such views are conveyed verbally in many instances.

I was wondering if subclause 12(2) could give first nations some fundamental influence over decision-making or the hearings of the specific claims tribunal.

[Chief Bill Erasmus]

Yes, that's true, it is possible. I think there are a number of factors at play. One is that you assume that the judges who are sitting on the tribunal are going to be fair and they're going to be listening to advice, and they are a body separate from the government of the day. So that does make sense.

We would also encourage at your level to have the influence to make sure first nations peoples are, in fact, appointed at the Supreme Court level. So there are a number of things that are going to have to happen over the next number of years.

[François Paulette]

I just wanted to add to that. If an elders council is created, then the rules of that council need to be explicit. I say that because I was involved in a court case, the Benoit taxation case, which I was an expert witness at. The appeal judge in his ruling said that François Paulette, first, was not mandated to talk about taxes, and second, was not an elder. So is it the judge who is deciding who's an elder? I think that needs to be very clear. If we're going to put an advisory council or an elders council together, the rules need to be explicit.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

From the NDP, Mr. Masse is here. You have seven minutes.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

Thank you for having me here. I give regrets on behalf of Jean Crowder. She's actually speaking in the House of Commons right now about the UN declaration and the debate that's going on.

Mr. Erasmus and Mr. Paulette, thank you very much for your testimony.

Mr. Erasmus, you made two points with regard to potential amendments. One was about the claims cap, and the second was about the process--about land, not money. Could you maybe expand on those two elements for the committee?

[Chief Bill Erasmus]

As you're aware, probably the biggest issue between first nations people and the crown is that land is at issue. There's a huge myth within the Canadian system that our people extinguished our rights to land; that somehow, without being defeated or conquered in war or by the military, we gave up all our lands and our rights to the crown. That's a myth that's been out there until very recently and that is beginning to turn around. Mr. Paulette talked about the court case he was involved in during the early seventies, which was a big part of turning the myth around, and also the Frank Calder case in British Columbia.

What our people really need and want is to have their original lands within their ownership so that they have a sound land base and can then develop their economy, their families, their nationhood, etc. They need the land base in order to survive. Money is necessary, of course, to function, but in most instances it's not the answer.

In terms of the larger claims.... Really, we shouldn't look at the question before us in terms of big or small claims; they're all important. A small piece of land is just as important as a large piece of land, depending on the peoples involved. For example, you're going to find people with different economies. There will be hunters and gatherers who have a certain attachment to the land; you'll have fishermen who are after lands they may have lost; you'll have people living along rivers, people in mountains, and so on. When you try to put a value to the claims, they come out to a dollar factor, and I think they should all be seen equally.

As I mentioned earlier, there are outstanding legal obligations on the part of the crown. There are more than 1,200 different claims before the government right now, and many of these have been sitting there for a long time. A cap is seen by many people as one way of continuing to keep the process under the control of the federal government .

With the huge surplus we have and good will, I think if you dealt with the cap differently, we could make a lot more progress. In the long run it will help all of us, because the sooner you deal with these claims, the more stability you'll have in our communities, and we can move forward.

[Brian Masse, NDP, Windsor West, ON]

Thank you.

I want to move on to the discussion we've been having with regard to the three years and the timeframes, and to get your opinion on that. If the minister has three years to make a decision and then subsequently, if it's positive, another three years, how do you both feel about that timeframe and whether or not there should be adjustments or amendments made to that timeframe itself?

[François Paulette]

I want to go back to my own negotiation. It took a number of years just to come to the table, and if there had been a cap in that case, I'd probably still be back there. It took a lot of pressing and a lot of lobbying to bring the claim forward so that Canada could deal with it.

There are a lot of unfortunate first nations that don't have the kinds of resources needed and the knowledge of how to lobby in 10 Wellington Street and in Parliament, so they're falling behind. The minister picks and chooses who he wants to deal with.

The other case I want to point out is one in Grande Cache. There are six first nations whose claim has been on the table now for many years. They have a land base around Jasper Park and at Grande Cache, and they haven't been seen to be going forward on that.

So yes, if there's an assessment of the three years, then I think you should look at that.