Indigenous and Northern Affairs Committee on April 9th, 2008

[Chief Fabian Alexis]

It's a suggestion, right? It may not be the best suggestion, but we're hoping that we could have the tribunal look at the validity of claims. Right now we're kind of in limbo because we don't quite fall within the definition of the specific claim, because, as I said earlier, our land has been appraised at over $750 million. We could fall within the tribunal if we agreed to knock our claim down to the $150 million cap, but we're not willing to do so just yet. We can negotiate that.

I'll just pass it over to Mr. Donovan to add any of his suggestions on that point.

[Allan Donovan]

Essentially, up until very recently we could have done exactly what Chief Alexis suggested by going to the Indian Claims Commission and getting a non-binding ruling. That avenue had its drawbacks, but it was better than nothing. Canada eliminated that access to the Indian Claims Commission and then, following quickly after that, withdrew from negotiations of the $750 million claim.

The cleanest way is to just let the tribunal rule according to law and have the first nations obligations be determined by the same legal principles that would apply to any other Canadian, not singling them out for second-class treatment. If that's not on the table, then at least have the tribunal tell the Government of Canada, “They are right. This is a valid claim. Go and negotiate it. We're not going to value it, but we're telling you there is a lawful obligation that was breached when you took away a 28,000-acre reserve for nothing.” We would hope that with that in hand, Minister Strahl would be able to turn to his Department of Justice colleague and say, “Look, there is a legal obligation, and we are going to negotiate here.”

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you.

[Tina Keeper, Liberal, Churchill, MB]

Thank you to our presenters.

I have a couple of questions.

My concern is similar to what has been raised. As you said, this has been represented as a process that would be in place to respond to the fact that there were only non-binding recommendations through the previous commission, and yet, as you said, there is this kind of Alice in Wonderland type of atmosphere or sense about it. That's where we all want assurances.

Mr. Waller might want to respond to this as well.

My fear as well is this issue of the process whereby only certain claims move through. Aside from the large claims, as Mr. Waller mentioned in his presentation, the limitation represents a challenge for many claim settlements, and first nations may not be as interested in the dollar amount of the compensation as in the ability to acquire reserve land. If it even goes into negotiations, the process is that if it's deemed rejected, or is rejected, the only avenue then is the tribunal process, which can award only monetary compensation.

I'd like to talk about whether you feel that the political agreement has within it any assurances to deal with these concerns.

[The Chair, Conservative, Barry Devolin]

You have about a minute and a half.

[Allan Donovan]

The political agreement does have assurances. The question is whether those assurances will be complied with. In a sense, it seems like a gentlemen's agreement, which has been described as something that is not an agreement and is not made between gentlemen. The plain fact is that political agreements in the past have been broken. The residential schools political agreement said that anyone who attended residential school would be eligible for the ten-and-three compensation. That was changed and the legislation said that anyone who resided at residential school would be eligible, so what Chief Fontaine signed his name to was not followed through. It's in the political agreement, and it's still there.

There's a promise of a process for claims over $150 million in this political agreement, but what the minister has suggested is that the minister himself will be the guardian of the gate. If we could have a process that would comply with legal principles and would allow us to make our case--that's all the Okanagan have been asking for.

[The Chair, Conservative, Barry Devolin]

Thank you.

Mr. Waller.

[Tom Waller]

I think I would answer in this way. First of all, Cumberland House is one of those first nations that are included within the Federation of Saskatchewan Indian Nations, and they therefore support the legislation.

We recognize it isn't perfect. The political agreement is another agreement that, in my view, puts the honour of the crown at stake. The crown has committed to a process that will solve both of the issues you've identified: the large claims and the addition to reserve of land.

One could sit here and note that in most first nation claims what you're arguing about is a breach by the crown of the honour of the crown already. At this point in time certainly my client is prepared to take that chance once again.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Waller.

Monsieur Lévesque.

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

Thank you, Mr. Chairman. I will be sharing my time with my colleague. I will try to be as brief as possible, to allow him time to put his questions.

The bill raises a number of concerns, including the fact that the province can opt to be a part of the tribunal hearing [Editor's note: inaudible], the fact that compensation is inadequate and the fact that the bill is not perfect.

My question is for all of you. If you had but one thing to recommend to improve the bill, what would that be?

[The Chair, Conservative, Barry Devolin]

Who would like to go first?

Go ahead.

[Allan Donovan]

If I had one recommendation, I would say addressing the $150-million cap through removing it or through establishing a process; and Chief Alexis would say fix up clause 14.

[The Chair, Conservative, Barry Devolin]

Mr. Waller.

[Tom Waller]

I think from our perspective we'd say simply remove the cap.

[The Chair, Conservative, Barry Devolin]

Chief Calihoo.

[Chief Rosalind Callihoo]

My recommendation would be as I spoke to, to amend the definition to include a clause that would allow first nation groups to file a specific claim.

[The Chair, Conservative, Barry Devolin]

Okay.

Ms. McDonald, did you want to say something?

[Doris McDonald]

I would agree with Rosalind Calihoo, to insert the definition of “first nation” in clause 2 of the bill, because it's limited to bands, as defined by the Indian Act, and that excludes our community. So mine is the same as Chief Calihoo's.

[The Chair, Conservative, Barry Devolin]

Thank you.

Monsieur Lemay, you have about three and a half minutes.

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

I will try to keep it brief. Earlier, mention was made of paragraph 15(1)(g). This provision is clear to me, but it may not be clear to you. It reads as follows:

15. (1) A First Nation may not file with the Tribunal a claim that (g) is based on treaty rights related to activities of an ongoing and variable nature, such as harvesting rights.

Is your understanding of this provision clear?

[Allan Donovan]

No, it's clear to me what paragraph 15(1)(g) is getting at. They're saying there are certain treaty rights that the government would see as specific claims if they breach them, and others, if they breach them, they would say aren't specific claims.

In our submission for the Semiahmoo First Nation, we said that this distinction wasn't, in our view, a proper one, because if you breach a treaty right, you breach a treaty right, and you should act accordingly and compensate.

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

I will end with a question of a general nature. Are all of you in favour of having a tribunal that makes binding decisions that cannot be appealed?

[The Chair, Conservative, Barry Devolin]

We'll start with Mr. Donovan, maybe.

[Allan Donovan]

We focused on the two issues we focused on because those are the most important ones to the Okanagan.

The question you posed, sir, is highly important, and it could go both ways. The difficulty in having an appeal to the courts is that Canada could then run a financially exhausted first nation through the court system. Unless there's funding, and Canada generally does not fund first nations in the courts, they'd be able to beat them by attrition rather than on the merits. You'd like to think that there would be some mechanism to make a correction. On the other hand, if there was something evidently wrong, as an earlier witness suggested, there could be a layer of internal review.

[The Chair, Conservative, Barry Devolin]

Chief Alexis, did you have anything to add to that?