Indigenous and Northern Affairs Committee on April 14th, 2008

[Grand Chief Tim Thompson]

I also agree with the other members, my fellow chiefs. It should be withdrawn. There is no process. We have to sit here together and discuss it directly.

[The Chair, Conservative, Barry Devolin]

Grand Chief Delisle.

[Grand Chief Mike Delisle]

I agree as well, not to restate everything that's been said. My community, decades ago, said not another inch. So we're not looking for amendments to this. It needs to be withdrawn.

[The Chair, Conservative, Barry Devolin]

Thank you, sir.

Chief Maracle, did you want to add something?

[Chief R. Donald Maracle]

Another point is that we believe the bill violates the equality provisions under the charter. Cash compensation should not always be forced on the Indian, where the title to the land goes to the non-Indian. We believe that's a form of discrimination on the grounds of race. I just want to make that observation.

[The Chair, Conservative, Barry Devolin]

Thanks.

Ms. Crowder, you still have time.

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

Again, to come back to section 35 rights, I've heard you say that this is a constitutional issue. If this bill were to proceed, do you see that there could be constitutional challenges coming forward?

[The Chair, Conservative, Barry Devolin]

I think Ms. Zachary Deom wanted to say something.

[Christine Zachary Deom, Mohawk Council of Kahnawake]

We're saying constitutional invalidities because this seems to be an end run around something that should be done a certain way--and I think all of you are acquainted with the certain ways.

We have crown treaties, the 1760 Treaty of Oswegatchie, recognized by the Supreme Court in Sioui, and we've also got the Great Peace of Montreal, the treaty signed in 1701. We've got many treaties. These treaties speak to protection of our lands, and these were incorporated. The language is a lot similar when you come to 1867 and the royal proclamation. They're similar in that they say in order for lands to be alienated there's a certain requirement. Suddenly it's as though everybody is blind to this and now it can be done simply through Bill C-30. That doesn't make sense to me.

On another matter, if I might just add, you were talking about consultation. Just recently, last week I think it was, you signed the UN Declaration on the Rights of Indigenous Peoples.

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

The House of Commons passed a motion, but the government to date has refused to acknowledge that it's a legitimate--

[Christine Zachary Deom]

In spite of the vote?

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

The majority of the House of Commons, the opposition parties, felt the government should sign on to that, but the Conservative government has failed to agree, so we haven't, unfortunately, signed on.

[Christine Zachary Deom]

In spite of a majority vote for it?

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

That's right.

[Christine Zachary Deom]

That's very interesting.

It's very interesting for me, from this perspective, that in there, in article 19, it says that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Today we've told you we think this will affect us and we maintain that position.

Thanks.

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

Thank you.

[The Chair, Conservative, Barry Devolin]

Grand Chief Delisle, did you have comments?

No.

Chief Phillips.

[Chief Randall Phillips]

Thank you, Mr. Chair.

I think going back to what the question was, would there be challenges if this were passed, since we don't accept the bill on its face, since it's not going to provide us with any benefit, then I would say, yes, there will be challenges. We've said there are provisions within that legislation that undermine our constitutional rights under section 35, plain and simple. I don't know how else we can put that in there.

Going back to Ms. Crowder's question with regard to whether there's another process in terms of trying to deal with this, I said go back and talk to the treaties, talk to the people you've dealt with on the treaties, and I'll repeat that. I say that because these treaties weren't documents that were made overnight. There was time, there was consideration, there was proper representation. It took an awfully long time for people to understand what was going on, how to deal with that, before they agreed to sign off on anything. What we're trying to do now is to replicate a treaty process in two days, three days. Again, I don't think that's the right kind of mindset to take to this approach.

If we're going to resolve these issues, which did not occur overnight, they will not be resolved overnight. But if there is no movement in terms of trying to replicate that other process, whereby these issues were dealt with, then we're going to continue to see the debates we're having right now with respect to any movement on any government legislation.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you.

Are there any further comments?

No.

With that, we'll go to the last questioner from the Conservative Party.

Mr. Bruinooge, you have seven minutes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair. Perhaps I might not be the last questioner. We might have another round.

I appreciate all the testimony today from the members who have come before us from your various nations. I appreciate, of course, in a democracy that we always have the opportunity to sometimes agree and other times to disagree.

Perhaps one particular point of testimony that I'll maybe ask a few questions on is just going back to Chief Phillips, to some of his testimony. You mentioned the tribunal we're proposing is inappropriate, and you went on with some commentary. I just want to speak a little towards why I believe the existing status quo is inappropriate.

We have situations where specific claims that are being put forward by first nations come to the government, and the government, as it currently stands, can either acknowledge those claims or not. As such, the Government of Canada is the judge and jury on these claims. Many have said through the years, and I agree, that this is an unacceptable, inappropriate situation. This specific claims commission came forward, but of course it did not have any binding elements to it...when it would rule. It would bring forward recommendations to the Government of Canada, but the Government of Canada again being judge and jury simply might choose not to proceed with those recommendations of the commission. However, the new tribunal, which is being proposed through this legislation, would be an entity all to itself, which would actually have the opportunity to create binding settlements and actually deliver real dollars towards these specific claims.

So it takes it out of the hands of the federal government, which many first nations have argued have a bias, whether it be to protect the public purse or to protect itself from lawsuit. So it's this very legislation that in my opinion is trying to set aside the inappropriate status quo.

My question for you would be this. In light of the fact that we have an inappropriate status quo, where the Government of Canada is judge and jury, do you believe this process, though perhaps not perfect, is in fact a departure from the status quo? Due to the fact that it is only voluntary, it can't be, at the very least, seen as a bad departure from the status quo. I would argue it's a good departure. I just want to hear your feedback on what I've said.

[The Chair, Conservative, Barry Devolin]

Chief Monture, would you like to begin?

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Actually, I was directing my question to Chief Phillips.

[The Chair, Conservative, Barry Devolin]

Pardon me.

Chief Phillips.

[Chief Randall Phillips]

Thank you, Mr. Chair. I'm going to give a quick response and then I'm going to see whether or not my counterpart here can add something of a more technical background.

One of the things I did say about the inappropriateness of the tribunal was based on the objection that we don't think it's independent to begin with. I would question whether or not the new tribunal or the new process that's being suggested is any departure from what did exist, and I'll tell you why I say that.

At the beginning, at the front end, there's still a determination by the government of whether or not this is a valid claim. So that's the process that exists right now. Even though you might put the process in a three-year timeframe, where negotiations can go back and forth, the tribunal could come in and say, “Okay, let's determine what it is.” The tribunal again could determine the validity of this. So again, it might seem like it's an independent process, but it really is not.

Does it speed things up? Sure, I think that's the approach the government has taken, and I think that's what the proponents of the legislation continue to announce--it will speed things up.

Where I said it was inappropriate, it was certainly inappropriate for our community. Any kind of beefing up or using that tribunal would simply not be appropriate in that fashion.

So does it beat the status quo? Again, I think there are incidences right now where the status quo doesn't change at all.

And I certainly do appreciate your comments with regard to the idea to agree to disagree. But I really don't see this as any real improvement with regard to the process right now. I don't see that it's going to be resolved in first nations favour down the line. I still think the process is directed towards the federal government and the advantage is to the federal government.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Perhaps I can ask another question, Chief Phillips.

You mentioned in your last statement that because the government could decide whether or not a specific claim was valid or not, nothing would change. The federal government can continue to state whether or not it feels a specific claim is valid when it's negotiating with the first nation, but when it writes a letter to the first nation saying it doesn't feel a specific claim is valid, that's when the first nation can go to this independent tribunal and independent judge.

You can debate whether or not judges in our country are independent, but I think for the most part they are. In theory, that is the case. We've seen many rulings across the country that surely don't go in favour of the federal government. So at that point you would have an independent judge who would rule on whether or not a specific claim was eligible.

I guess I would argue a bit with you on that point, in the sense that once the Government of Canada doesn't feel a specific claims is eligible for further negotiation, that's the whole point of this process. It allows you to then take it to the next level, and within that process there will be a result. The legislation itself guarantees a result either way.

My next question follows up on the voluntary nature of this process. Due to the fact that your community doesn't need to engage in this process, do you feel it should be made available to committees across the country that want to take part in the process?