Indigenous and Northern Affairs Committee on April 14th, 2008

[The Chair, Conservative, Barry Devolin]

Good afternoon, everyone. I would like to welcome you to the 24th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today we will be continuing with our hearings regarding Bill C-30, An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts.

We have a very full house here today, so welcome to all of you, both our large number of witnesses as well as those in the room today. I only point that out because there are actually people at home watching this on television and they can't see that part of the room to know that we have a full house here today.

We have the Iroquois caucus here today, and we will begin with six presentations from this group, limited to 10 minutes each. We have two hours, so we need to be done at 5:30. I'm going to restrict those presentations to 10 minutes, and I would ask for your cooperation in that regard. I'll give you a one-minute warning. When you start your presentation, at one point I will just say, “one minute left”, and that gives you an idea of your time so you can wrap it up. I only ask that because following those six presentations, which will take a little over an hour, we will have a round of questioning, and I know that many of the committee members would like to have the opportunity to ask questions. Depending on how long it takes us to get to that point, we'll adjust to determine whether we have time for one round of questioning or whether we have time for possibly two rounds. We'll cross that bridge when we come to it.

First, we are going to get a presentation from Chief Bill Montour on behalf of the entire group. There are 10 minutes for that presentation. Following that, we'll have a second presentation from the Six Nations of the Grand River, which will also be given by Chief Montour.

I will give you 10 minutes, and if you finish your first presentation before that, then I'll just make that point and we'll carry on to the second one as well. With that, welcome, Chief Montour. You have 10 minutes.

[Chief Bill Montour, Six Nations of the Grand River]

Thank you, Mr. Chair and honourable members of the Standing Committee on Aboriginal Affairs. Sekon, skano!

Before I start, I would like to acknowledge that Grand Chief Steven Bonspille from Kanesatake is with the witnesses. He didn't get a chance to get his name on the list. I just wanted to make that point.

My colleague chiefs have asked me to make this statement on behalf of the caucus.

In prehistoric times, the Iroquois formed a confederacy to assure peace, unity, and cooperation among five nations. We are referred to as the Five Nations Confederacy and then the Six Nations or the Iroquois Confederacy.

Our original homelands stretch from the Niagara region in the west as far as Quebec City in the east. Our people are still living in many communities throughout our territory. We still carry on intercommunity trade as we always have. The Iroquois Confederacy is both a military and a sovereign political ally of the British and the Americans. We've never given up our sovereignty, nor have we willingly ceded our land and territories. We still hold and exercise our original rights and freedoms.

Kahnawake, Kanesatake, Akwesasne, Tyendinaga, Wahta, Six Nations of the Grand River, and Oneida of the Thames are the communities of the Iroquois Confederacy. Although we are separated by distance, we recognize that we are one people who share a common identity, common responsibilities, and our own system of law and government. Among our member communities, we have four of the five largest reserves in Canada. The elected councils of our communities have united in a political forum known as the Iroquois Caucus, and we represent the interests of our combined population of more than 60,000 people.

We have tried to have our issues and views presented through other processes and organizations. This has not worked for us. We have decided that now and in the future we will represent ourselves at all regional, national, and international levels and speak on our own behalf. As one people, we will have no other organization represent us or speak for us without our express consent, including the Assembly of First Nations.

Any agreement they enter into cannot be binding on us without our consent. As original nations of this continent, we have always maintained that we are nations within the meaning of international law and have never given up this status. As far back as the League of Nations, the forerunner of the United Nations, we have sent delegations asserting our sovereignty and imploring the crown to live up to its treaties with us.

Our relationship is with the crown and is governed by the Two Row Wampum, one of the oldest treaties in North America. It is interpreted to mean that in the same way as two rows do not intersect, our respective governments also agreed not to interfere with each other. The purpose was to establish and maintain peace and friendship within our nations. The Two Row defines our relationship by recognizing that we are equal but separate nations, and that forms the basis of all our treaties and agreements that followed.

We have continued to adhere to the relationship because it is our responsibility. We teach our children about responsibility because they will inherit this responsibility after we're gone and because peace is always desirable over a state of conflict, and friendship is a desired societal goal. But we find that Canada, which is responsible for this relationship on behalf of the crown, does not honour the agreements made by its forebears.

Rather than approaching the issue as allies and seeking a peaceful resolve, we are too often faced with unilateral decisions directed to us on how the issues will be handled. As a result, we find ourselves faced with the prospect of constant conflict.

Our treaties with the crown are vastly different from the so-called numbered treaties with Canada. Our pre-Confederation treaties are of governance, sharing, honour, and respect between the crown and the Iroquois, but they do not include extinguishment of our title.

Let it be understood that settlements resulting from any process will not include any release of our lands, and no amount of money can replace our children's future in our lands.

Our original relationship is represented by the Two Row Wampum for the purposes of establishing peace and friendship between us. The occupations, protests, and even armed conflict that has been occurring and continues to occur in our communities over land issues and claims is inconsistent with the intent of our relationship. It is a continual state of conflict that neither of us desire. As a result, we want this bill to be withdrawn.

We recommend developing a fair process based on our original relationship with the crown, a process whereby reconciling our interests would achieve peaceful and more acceptable resolutions for settling grievances. We are prepared to work with the federal government in developing such a process.

I have a summary of recommendations. I'll read two of them, and my colleague chiefs will jump in after me.

Recommendation number one is that a fair process be developed based on our original relationship with the crown, a process in which reconciling our interests could achieve peaceful and more acceptable resolutions to settling grievances. The Iroquois Caucus is prepared to work with the federal government in developing such a process.

Recommendation number two is that Canada withdraw this bill until a full and inclusive consultation has taken place with all affected aboriginal nations through a process jointly designed with them and adequately funded.

I'd ask my colleague, Chief Randall Phillips, to carry on.

[Chief Randall Phillips, Oneida Nation of the Thames]

Thank you.

Thank you, Bill.

Recommendation number three is that the scope of claims be expanded to include all legal obligations arising from the fiduciary relationship and the honour of the crown, including pre-Confederation treaties.

Recommendation number four, is that Canada's perceived conflict of interest be removed through the creation of a truly independent mechanism that would report directly to Parliament and aboriginal nations and partially provide funding resources to first nations.

Recommendation number five is that aboriginal nations be provided adequate funding grants to enable them to pursue their claims and to create a more equitable and just process.

Recommendation number six is that Canada not be exempted from punitive or exemplary damages.

I'll pass the next on to Chief Thompson.

[Grand Chief Tim Thompson, Mohawk Council of Akwesasne]

Recommendation number seven is that compensation criteria ensure aboriginal nations are not discriminated against by the application of the Musqueam court decision.

Recommendation number eight is that where aboriginal title has not been seated, access to and use of land by the aboriginal nations be included in the settlement agreement.

Recommendation number nine is that the extinguishment clause be removed from the requirement of all legislation and agreements.

I'll now turn to R. Donald.

[Chief R. Donald Maracle, Band No. 38, Mohawks of the Bay of Quinte]

Recommendation number 11 is that an independent panel consist of at least three judges.

Recommendation number 12 is that at least one judge of the tribunal be an aboriginal judge.

Recommendation number 13 is that funding be decided and provided by an independent body.

Recommendation number 14 is that a special process for large claims be developed jointly with aboriginal nations and be implemented as soon as possible.

[Grand Chief Mike Delisle, Mohawk Council of Kahnawake]

Recommendation number 15 is that the Iroquois Caucus members have a specific exemption clause in the legislation until the large claims process is established.

Recommendation number 16 is that all elements of the political accord be included in the legislation.

And finally, recommendation 17 is that the cap on settlements be removed.

[The Chair, Conservative, Barry Devolin]

Thank you very much for that initial presentation from all of you on behalf of your umbrella organization.

I would like now to move to the first of five presentations that will be made by the individual delegations.

From the Six Nations of the Grand River, Chief Bill Montour, go ahead again, please, for 10 minutes.

[Chief Bill Montour]

Again I want to thank you for the opportunity to appear before you. My time is short, so I'll cut to the chase.

As I said, my name is Bill Montour, and I'm the elected chief of the Six Nations of the Grand River. We are located in southwest Ontario, just west of Hamilton. Six Nations is the largest first nation in Canada, with a total population of over 22,000 citizens.

We have fewer than 5% of our original land holdings, as promised by the Haldimand Treaty of 1784. That translates to fewer than 46,000 acres of the approximately 950,000 acres promised by the crown to win our alliance with Britain throughout the revolutionary wars of independence with the Americas.

This number is significant, because, as you can well see, the difference in these numbers indicates the volume of the so-called land claims, with many years of compensation requiring redress. Today's value of this land in southern Ontario makes many of our documented rights to the land outside the scope of the financial cap contained in Bill C-30. Therefore, creative solutions will have to be implemented if the honour of the crown is to be maintained and our treaties fulfilled.

On November 2, 1796, 36 Mohawk, Oneida, Seneca, Onondaga, and Cayuga Indian chiefs authorized Joseph Brant to surrender in trust to the crown four blocks of land containing 302,907 acres for the purpose of establishing an annuity for the perpetual care and benefit of the Six Nations.

This was secured by 999-year mortgages between 1798 and 1811, but covered only a portion of the lands as identified. Continuous revenues from the mortgaged lands are no longer deposited to the Six Nations trust funds, nor have proper mortgages been entered into for all the lands placed in trust with the crown.

In 1796, funds were treatied to secure our perpetual care and maintenance and to ensure our education needs, our health care needs, our social program needs, and our housing and infrastructure needs are met to our standards.

We are supportive of the Iroquois Caucus brief to this committee, but I would also like to make or reinforce a few key points.

One, the duty to consult was not met with this bill. The duty to consult rests with the crown, and Six Nations was not consulted. This duty cannot be delegated to others, such as the Assembly of First Nations. The Assembly of First Nations did not consult, nor was it their responsibility to consult. The duty is to consult the rights holders, which means our Six Nations government, not organizations. I also understand the AFN was forbidden by the federal government to share what they were working on.

Two, this bill violates our treaties with the crown, in particular the Gus-Wen-Tah, or Two Row, Treaty, where we agreed to not interfere with each other's affairs. Once again the federal government is trying to impose legislation on us. This must stop.

Three, Six Nations is engaged in important and sensitive negotiations over lands in dispute at Caledonia and other parts of our treaty territory along the Grand River. We have been given a verbal assurance that this legislation will not apply to these negotiations, and we have even been given the assurance that we will receive a letter to that effect. However, we believe a letter will likely be overruled by this legislation. Therefore, we want an exemption from this legislation specific to Six Nations to be inserted in this legislation.

Four, we would also like to see the protections contemplated in this bill transferred to the federal mandates and negotiators who are negotiating large claims settlements with Six Nations, such as time limits and removal of technical defences.

Five, lands must be on the table for negotiation. Six Nations of the Grand River's view is that lands must be returned to the Iroquois Nation equivalent to the same standing as held by the Haldimand Treaty or as specified by Six Nations.

Six, settlements must mean certainty for both the crown and Six Nations. We don't want you going back on your word or the intentions of written agreements, as practised by crown agents in the past. At the same time, we do not want to see any extinguishment of our rights and interests to the lands in question. We can be very specific about what rights all parties are to receive. Extinguishment was never contemplated in our land dealings. We leased land, often through the crown, as income for Six Nations and for perpetual care and maintenance of our territory and people. In specific areas we welcomed people to share our territory upon leasehold conditions and under terms conducive to our title to the lands being maintained and continuous ownership.

I want to make a final comment on terminology and why this issue is important to us. Our attempts to obtain justice over our land rights issues have been termed land claims by the Canadian government. This term is wrong, and a new term should be found. We suggest, perhaps, first nations lands reparations. We are not making a claim of land. If there is any doubt about who owns the land, for an incomplete or an illegal transaction, any doubt must fall on the side of the first nations. It reverts to the Six Nations.

The reason for these land reparations is important because they represent the potential to fulfill intended purposes of land transactions, again, the perpetual care and maintenance of our nation. They represent a way to provide economic development and to generate revenue to make our communities self-sufficient. We need these resources through just settlements to fill the current funding gaps on so many issues important to our community, such as the provision of clean, safe water; the protection of our languages, cultures, traditions, ceremonies; and the protection of our environment. All these things are necessary for the perpetual care and maintenance of our people. That is why these just settlements must include more than cash. They must include the return of our lands and resources, which we had never intended to part with. They must include justice.

Nia:wen. Thank you very much.

[The Chair, Conservative, Barry Devolin]

Thank you very much, Chief Montour.

Next, from the Oneida Nation of the Thames, I believe Martin Powless will be beginning the presentation.

[Chief Randall Phillips]

If I could, Mr. Chair, my name is Chief Randall Phillips. I will be doing most of the presentation. I have invited a councillor and elder from our community, Olive Elm, and she will also be doing part of the presentation.

[The Chair, Conservative, Barry Devolin]

Thank you very much for that.

We look forward to this, Mrs. Elm.

[Chief Randall Phillips]

[Witness speaks in the Oneida language]

Good afternoon. I want to thank everybody for the opportunity to present our views on this bill to this committee.

First of all, I want to start by saying that I'm the elected chief of our community. I say “elected”, and I make that distinction for two reasons. Our community is involved with a traditional style of governance. We still have titleholders and clan mothers within our community. I make that distinction to one, respect them, and two, to make it clear that there is a distinction with regard to this notion of governance. So I put that as a preamble in terms of my statements, Mr. Chair.

The Oneida Nation of the Thames generally supports the submission of the Iroquois Caucus in its concerns about the proposed act to create a specific claims tribunal, Bill C-30. For example, we support the assertions that the Gus-Wen-Tah, or Two Row Wampum, is an ancient treaty right of all Iroquois communities and that Bill C-30 is in direct breach of this; that the Assembly of First Nations has no authority to represent our nations or our communities; that the federal duty to consult has not been met; that the tribunal, as proposed, is not independent; that land should be a part of the specific claims settlements; and that imposing Bill C-30 is a direct breach of and a purported extinguishment of our existing section 35 rights.

Our ancestors immigrated to Canada circa 1840. The Oneida Nation of the Thames was not granted any lands in Canada; rather, we purchased our settlement territory with our own funds. These funds were placed in trust, with the Indian department of the day, to purchase several tracts of land for the use and benefit of the Oneida Nation of the Thames people. Consequently, many of our specific claims deal with the land itself. We have outstanding issues with Canada as to whether we've received as much land as we paid for and whether we paid for certain tracts of land twice.

Our territory is not whole. There are conspicuous absences of land in the territory that we purchased. There are also issues of regaining the land that was once part of our purchased territory that has been lost to taxes or fraud by government agents. Our elders recount stories that indicate our land holdings once extended far beyond the currently recognized Oneida Nation of the Thames boundaries. Therefore, the provisions in clause 20, which refer to monetary compensation only, are simply not acceptable to the Oneida Nation of the Thames.

Entitlement to land we rightfully paid for will always be a contention of the Oneida Nation of the Thames, regardless of what legislation is passed by Canada. The right to manage our own lands has been a hallmark of our internal jurisdiction of the Oneida Nation of the Thames since we came to Canada in 1840.

Currently, the Oneida Nation of the Thames exercises inherent jurisdiction over internal matters such as land transfers, probate of estates, approving wills, and appointing executors and administrators of estates. Our jurisdiction originates from an 1840 order in council, which is outside the relevant Indian Act sections, and reads:

Under the circumstances represented of a number of Indians coming into the Province possessed of means to purchase land, the Council do not think the Government is under any obligation to interfere with their affairs any more than in the case of ordinary immigrants; and the state of civilization to which they are said to have attained makes it, in the opinion of the Council, advisable to leave them to their own discretion in the management of their property....

Let me repeat that: it's “advisable to leave them to their own discretion in the management of their property”.

...but they should receive when they require it, the advice, counsel and protection of the Indian Department and of the Government, so as to insure the success of the Settlement as far as possible.

That's an order in council granted August 14, 1840.

The Oneida Nation of the Thames has continuously exercised this internal jurisdiction and has operated our custom landholding system for the past 170 years in reliance of our rights, as is stated in this order in council.

Bill C-30, if implemented as proposed, would amount to a unilateral extinguishment of our rights arising from that order in council. Why? Because clause 4 of that bill states that the act will prevail when there is a “conflict between this Act and any other Act of Parliament”.

Oneida has a sui generis relationship with Canada when it comes to our land holdings and our rights to our territorial base. Passing this legislation amounts to a unilateral back-door constitutional amendment, because it eliminates or amends our section 35 rights under the Constitution Act of 1982.

The Oneida Nation of the Thames demands that the federal government enter into negotiations immediately with our nation to reaffirm our ancient and existing rights with respect to our internal management of our lands, which has always been outside of the Indian Act.

There are some specific issues that we have with Bill C-30, and I'd like to focus on those.

Clause 3 gives the tribunal the power to determine the validity of claims, as well as to decide the amount, if any, of compensation that is owed related to those claims. This is not an independent tribunal by any stretch of the imagination. If you look at the combined effects of clauses 3, 11, 14, 19, 20, and 35 of the bill, what you have is one party of Canada appointing the judge and jury who will be deciding the cases against themselves. This is an affront to the principles of natural justice. There is no judicial independence. We submit that this type of scheme would only bring the administration of justice into disrepute. This process is fundamentally flawed. Maybe there might be some role for the tribunal and its expertise to determine what is fair compensation after there's been a determination of the validity of the claim, but to have the same body determine both is unacceptable.

Clause 5, when viewed in conjunction with clauses 34 and 35, creates a very real disincentive for first nations to file with the tribunal because, in effect, if the tribunal denies your claim, automatically the government is released from any liability or any damages that may have been payable arising from the facts surrounding the claim in the first place. This renders first nations rights and appeals useless and redundant.

Under clause 13, the tribunal may hear evidence with respect to cultural diversity, but they cannot award any amount for the head under this claim of subparagraph 20(1)(d)(ii), which deals with losses of a spiritual or cultural nature.

Subclause 13(2) demands repayment of the moneys provided to the claimant first nations after a successful claim. This is offensive. Why should we have to pay for something that is Canada's fiduciary obligation and their duty to protect--our lands and our rights upon those lands? We agreed to be accountable, but this clawback provision is unacceptable.

First nations already must deal with the ridiculous bureaucratic red tape for grossly inadequate funding. This inherently limits what research we can conduct, and thereby compromises our properly preparing claims. Funding should be provided to first nations with no strings attached. This government has unlimited resources. By contrast, we have very little.

Clause 23 is flawed, because the province must consent to be bound by the terms of the decision of the tribunal. Provinces will never consent to be bound. They are the ones that first nations oftentimes have claims against due to the divisions of power in the BNA Act.

The limits placed on the amount and the award are arbitrary and unreasonable. The ability for the crown to take up to five years to pay under clause 36 is discriminatory, as all other court judgments are fully payable immediately.

In summary, the overall flavour of the bill is one of reconciliation—

[The Chair, Conservative, Barry Devolin]

One minute.

[Chief Randall Phillips]

—which we hear a lot of from the crown. Maybe the principles of compensation and restitution for first nations losses should be guiding this process. Once those have been addressed, then possibly we could move forward in a form of reconciliation.

The Oneida Nation of the Thames has never been adequately consulted with regard to the potential effects this draft legislation may have on our lands and our rights on those lands. Nobody, including the Assembly of First Nations, has been given the mandate to agree to this legislation on behalf of the Oneida Nation of the Thames or to negotiate what should be included in there.

The Oneida Nation of the Thames does not support this legislation. We will not consent to waiving our existing rights just so that we can have a claim considered by this process and the tribunal.

There's also a conspicuous absence of a non-derogation clause. We feel this is because it is an explicit attempt to extinguish rights under section 35 of the Constitution Act.

The Oneida Nation of the Thames should be negotiating directly with the federal government to resolve our outstanding land entitlement issues. In our case, any amount of money simply will not suffice. Getting the lands we rightfully paid for 170 years ago is our primary objective.

In conclusion, I'd like to finish with our recommendation in the language.

[Olive Elm, Councillor, Oneida Nation of the Thames]

[Witness speaks in the Oneida language]

[Chief Randall Phillips]

Thank you, Mr. Chair.

[The Chair, Conservative, Barry Devolin]

Thank you very much, Chief Phillips, and thank you, Mrs. Elm.

Next are the Mohawks of the Bay of Quinte, and I believe Chief Donald Maracle will be making a presentation. You have 10 minutes, sir.

[Chief R. Donald Maracle]

Sge:no swa:gwego, hello, bonjour. Greetings from the Mohawks of the Bay of Quinte to the members of the House of Commons gathered here.

Mohawks of the Bay of Quinte are part of the Mohawk Nation within the Six Nations Confederacy. We are one of the Six Nations communities associated with the Iroquois Caucus and we are members of the Association of Iroquois and Allied Indians.

The Tyendinaga Mohawk territory is located eight miles east of Belleville and 50 miles west of Kingston. Our membership is 7,724. We have an on-reserve population of 2,093. Our community has the third largest membership of aboriginal communities in Ontario, and we are the sixth largest native community in Canada.

My research assistant will read our history.

[Lisa Maracle, Researcher, Mohawks of the Bay of Quinte]

Our ancestors were military allies of the British crown during the American Revolution, as well as in many previous wars between England and France. One of the many promises made to our ancestors was that our homeland villages would be restored at the end of the revolutionary war. However, when the war ended with the signing of the 1783 Treaty of Paris, our homelands were given up by Britain to the American rebel forces. In recompense for the loss of the homeland villages, and in recognition of their faithful military alliance with the British crown, our ancestors were to select any of the unsettled lands in Upper Canada. As a result of this crown promise, lands on the north shore of Lake Ontario were selected for settlement. These lands were not unknown to our ancestors as they were part of a vast northern territory controlled by the Six Nations Confederacy prior to the Royal Proclamation of 1763.

Our ancestors arrived on the shores of the Bay of Quinte on May 22, 1784, only to find that many Loyalist families were already squatting on the lands promised previously by the crown. The Bay of Quinte is the birthplace of Dekanawideh the Peacemaker, who brought the original Five Nations Iroquois Confederacy under a constitution of peace in the 12th century. When the Tuscarora were adopted into the confederacy around 1722, our people became known as the Six Nations Confederacy.

After nine years of reminding the crown of promises made at the close of the war, the Six Nations were granted a smaller tract of land, about the size of a township--approximately 92,700 acres--on the Bay of Quinte. We received a deed to this land known as the Simcoe Deed, or Treaty 3 1/2. This document is dated April 1, 1793.

Not long after we set up our village, many United Empire Loyalists came into the area. Within a span of 23 years, from 1820 to 1843, two-thirds of our treaty land base was lost as the government made provisions to accommodate settler families. Today we have approximately 18,000 acres left of our treaty land base.

[Chief R. Donald Maracle]

On our concerns with the proposed legislation, when we were informed about the development of new legislation to replace the specific claims policy and we heard the AFN was going to be involved in drafting the legislation, we anticipated a draft piece of legislation that would address the concerns of first nations and that we would be consulted adequately because we would be affected by the legislation.

We were disappointed to see that the legislation was introduced into the House of Commons prior to consultation. Instead, we are expected to provide a reactionary response to an already introduced bill, with no guarantee that our concerns will be considered. We were further surprised to find out that the AFN was not able to discuss the proposed legislation with first nations prior to it being introduced. Both Canada and the AFN failed to consult with first nations in any meaningful way prior to introducing this legislation in the House.

After the fact, we find that the proposed legislation resolves many of the federal government's administrative difficulties with the current policy, but does very little to address the title interests of first nations. We have major concerns with this proposed legislation as it stands.

After reviewing the proposed legislation, we reiterate and support all of the comments that were previously presented by the Iroquois Caucus. We offer the following comments on specific aspects of the proposed legislation that fail to address the needs and interests of our community. This submission does not constitute consultation, but outlines our concerns with the proposed legislation.

On conflict of interest, Canada has stated that this proposed legislation gets rid of the conflict of interest that exists with the current specific claims policy. In our view, the conflict of interest still prevails. Canada, through the Department of Indian Affairs, will still determine the validity of a claim and whether it will be accepted for negotiation or not, based on a legal opinion from the Department of Justice Canada. If the claim is not accepted or it is rejected, under the proposed legislation a first nation will have the option of going to the tribunal. At the tribunal, a first nation's claim will be heard by a Superior Court judge who has been selected by the Department of Justice Canada and appointed by Canada. Given that Canada will retain control of the claim submission process and the appointment of judges, the conflict of interest has not been rectified.

Next is the lack of land as compensation--only monetary compensation. Our biggest concern with the proposed bill is that the lack of restoration of land as a form of compensation is not there. This legislation as it stands only provides monetary compensation, not land. This is an infringement on our rights under the Simcoe Deed, or Treaty 3 1/2, which is a constitutionally protected right under Canada's Constitution in section 35.

Our specific treaty states:

And that in case any Person other than the Chiefs, Warriors, Women and People of the said Six Nations shall under pretence of any such Title as aforesaid presume to possess or occupy the said District or Territory or any part or parcel thereof that it shall and may be lawful for Us, our Heirs and Successors at any time hereafter to enter upon the Lands so occupied and possessed by any other Person or Persons other than the said Chiefs, Warriors, Women and People of the Six Nations and them the said Intruders thereof and therefrom wholly to dispossess and evict and to resume the same to Ourselves, Our Heirs and Successors.

This means that the crown or its heirs have a fiduciary duty to dispossess trespassers from our land. These treaty provisions embody the special relationship between the Mohawks and the British crown as military allies, and cannot be forgotten by subsequent layers of legislation.

The current specific claims policy under “outstanding business” has a provision for land under compensation. Paragraph 3)(i) states:

3)(i) Where a claimant band can establish that certain of its reserve lands were never lawfully surrendered, or otherwise taken under legal authority, the band shall be compensated either by the return of these lands or by payment of the current, unimproved value of the lands.

(ii) compensation may include an amount based on the loss of use of the lands in question, where it can be established that the claimants did in fact suffer such a loss. In every case the loss shall be the net loss.

The experience of the Mohawks of the Bay of Quinte with the specific claims policy is that Canada's negotiators tend to turn a blind eye to the land compensation component of the policy. Canada's negotiators instead follow an unwritten policy of monetary compensation only, and then advise first nations that they can use the settlement moneys to purchase lands on a willing seller, willing buyer basis. Rather than recognize the fiduciary role to the treaty provisions of protecting the land, the crown has instead followed a course of action toward extinguishment of aboriginal title. The establishment of a tribunal to address monetary compensation only further ignores the treaty relationship that exists between our community and Canada.

The only mandate we have from our community in negotiating land claims is to have the land returned to our growing population and to seek compensation for the loss of use of that land.

Under the proposed legislation, monetary compensation is set at a maximum of $150 million. This is a combination of current market value compensation and loss-of-use compensation. No amount of money can entice us to surrender our lands.

[The Chair, Conservative, Barry Devolin]

You have one minute remaining.

[Chief R. Donald Maracle]

Money does not address the crown's responsibilities to our treaty, nor is it addressing the growing need for restoration of our land base for generations to come.

The tribunal will not look at land claims over $150 million. Given the fact that our community has less than 20% of its treaty land left, with approximately 75,000 acres under potential claim, it is doubtful that our claims will fit into this process, especially when taking into account third-party developments on the claim area.

On the issue of forced extinguishment, the legislation requires first nations to surrender all interest in or rights to the land and resources upon the settlement of a claim. The clause is also an infringement of our treaty rights under the Simcoe Deed, Treaty 3 1/2, which outlines how lands are to be disposed of. It reads as follows:

Provided always nevertheless that if at any time the said Chiefs, Warriors, Women and People of the said Six Nations should be inclined to dispose of and Surrender their Use and Interest in the said District or Territory, the same shall be purchased only for Us in our name at some Public Meeting or Assembly of the Chiefs, Warriors and People of the said Six Nations to be held for that purpose by the Governor or Person Administering Our Government in Our Province of Upper Canada.

[The Chair, Conservative, Barry Devolin]

We're at 10 minutes, and we have your presentation. It will form part of the record even if you do not have the opportunity to present it all. If you'd like to summarize before ending, if there are a couple of critical points you would like to make, please do so.

[Chief R. Donald Maracle]

We reiterate the comments that have been made by some of the previous chiefs, particularly in regard to one judge being appointed. We find that's totally unacceptable.

The political accords oftentimes are not lived up to by the Government of Canada. A good example is the Kelowna accord. So we don't put too much stock in political accords. But the reality is that Canada has lawful obligations to protect our title to land. That obligation has been around since 1713, with the passing of the Treaty of Utrecht. The crown is to be a protector of Six Nations lands and has failed to do so. Our lands have experienced a lot of fraud and alienation, and as a result the crown should be purchasing land to settle these claims. Canada buys land for a lot of other purposes, and Canada should include the purchasing of lands directly by Canada itself to settle claims.

[The Chair, Conservative, Barry Devolin]

Thank you very much, Chief.

One of the most difficult parts of this job is to sometimes have to limit presentations. I know you've travelled to be here in Ottawa today, and we appreciate listening to you. As I said, for those of you who provided us with a written copy of the presentation, that is part of the record. I know that members of the committee have either read it already or will read it.

Thank you very much.

The next presentation is from Grand Chief Tim Thompson from the Mohawk Council of Akwesasne. You have 10 minutes, sir.