Indigenous and Northern Affairs Committee on April 14th, 2008

[Chief Randall Phillips]

I'd like to give a partial response to some of the earlier questions and then ask Martin to conclude on that.

On how this bill was moved forward, I suggest that the crafters of the bill were careful to address those types of things in its design--to put it in a flavour that makes it seem like it's moving forward. But I think there are some very carefully worded clauses in there that accomplish quite the opposite. We'll just have to wait to see how that goes.

I'm going to pass the microphone to Martin to address some of the other concerns.

Thank you.

[Martin Powless, Lands and Estates Administrator, Oneida Nation of the Thames]

Thank you, Chair.

I'll try to answer one of the question asked previously. Do we think it's a bad departure from the status quo? I think it is, because right now we would at least have the right of appeal on two separate levels after the determination of validity at the court of first instance, but this eliminates that. Whatever the tribunal says about validity, it solidifies our rights and takes away our rights of appeal. So I don't think it's any better than the status quo. The question back would be, would Canada agree to have a truly independent outside third party determine the validity of these claims? I think that's what we're looking for.

We can't get over the fact that the judges are appointed by Canada. So if we had a truly independent party determining at least that part of it, maybe the tribunal people could come in later to help assess what compensation was fair, because they have the knowledge and background of the history and other awards in Canada. But I don't think the same person should do the validity and the compensation determination.

I would like to see a process where neither Canada nor any of its judges have any stake in determining the validity. Then I think it would be an improvement over the status quo. We can't speak for other nations, but we don't think it's an improvement.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

That completes the first round of seven minutes. We have time to begin a second round, but I'm not sure if we'll be able to complete it.

Ms. Karetak-Lindell, you have five minutes.

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

Thank you.

I'm a little confused to begin with, but my question is more on some of the statements you have made on pre-Confederation treaties. I understand that's a totally different area, versus a lot of the other unsettled claims across the country.

Going on the same premise that, yes, one shoe does not fit everyone, I'm wondering why you would not allow this legislation to go through to deal with the ones who can take advantage of it, the ones where the shoe sort of fits, especially for B.C. or some other areas of the country where they feel they can work within this legislation. Then try to convince the government that there should be another process for maybe pre-Confederation claims. Is that an option? As you say, some people said you would ask for an exception for your claims.

Having said that, there's also the fact that it's a voluntary process. So in order to try to facilitate some movement on some files, wouldn't you want to see this go through to take care of some of those other claims, on the premise that this would not prejudice your claims, not only your claims but these types of claims?

[The Chair, Conservative, Barry Devolin]

Chief Montour, would you like to start?

[Chief Bill Montour]

If we can have certainty that other claims under $150 million, or wherever there are claims in the numbered treaty areas and in B.C., will not jeopardize our position, be our guest. But from the Six Nations point of view, any act that asks us to accept dollars for land rights settlement and then in turn asks us for certainty that we'll cede, surrender forever, is repugnant.

Our community has stated very clearly that we will not sell another teaspoonful of land.

Thank you.

[The Chair, Conservative, Barry Devolin]

Chief Phillips.

[Chief Randall Phillips]

Thank you very much, Mr. Chair.

I have a really quick response. I certainly cannot speak for the other communities and say whether or not this is an advantage for them to move forward. I only suspect that if I had the opportunity to explain to them what our concerns are with the bill, they might look at it differently.

That's my only comment with respect to that.

Going back in terms of how we talk about these things, I want to reiterate what we said earlier, at the beginning of the Iroquois Caucus. It said that we have a treaty relationship called the Two Row Wampum, or Gus-Wen-Tah, which extends to us in terms of other first nations communities too, telling them what's good for them and what's not good for them.

I can appreciate your questioning us in that regard, but as you are here, we are here as representatives of the Iroquoian community and this is what we're looking at here. So I can't or won't speak on behalf of any other community in terms of whether or not this is an advantage or a disadvantage for them.

I don't know what they were told. We came here very clearly and told you that there was no consultation across this country, so maybe the reason they're suspecting it's a good thing for them is because of the same lack of consultation and the same lack of understanding of the threats that we see.

Thank you.

[The Chair, Conservative, Barry Devolin]

Chief Maracle.

[Chief R. Donald Maracle]

The bill will work for some communities. The communities it will work for should be in a specific schedule that applies to their communities, and it should be up to the local government of each community to decide whether they want this legislation to affect their community.

It doesn't matter whether there's a treaty right that's pre-Confederation, because the treaty was alive and well prior to Confederation, and the same terms and conditions apply and were alive and well after Confederation. Treaty 3 1/2, for example, which was made in 1793, was alive in 1793 and had a beneficial effect for our people, and the same beneficial effect is alive in 2008.

We have an obligation to protect our treaty rights and to make sure that our treaty rights are not infringed upon or abrogated or extinguished or diminished. This bill does that. It doesn't accomplish the goal of our people, which is land reparation for our traditional lands, regaining control of our traditional lands. It doesn't meet the goals and aspirations of our young people. So there needs to be a treaty process.

Since the government has always avoided honouring the treaties and upholding its fiduciary obligations, there is no process yet in place in Canada to do that. It could become the only game in town. If you want to settle land claims, Canada may only be willing to talk about money and not about the return of the land. That's the part that's silent, and that's the part that is threatening about this legislation, that it will become the only game in town.

The other thing is that there is no provision in the bill for a non-derogation or a non-abrogation clause. It makes us question whether our treaty rights are being infringed upon through this legislation and if the intent of the government of the day is to do that.

So if communities want this legislation to apply to them, it should be a decision of the community, and those communities should be named in a separate schedule. But it should not be a law of general application.

[The Chair, Conservative, Barry Devolin]

Thank you.

Grand Chief Thompson, did you have something?

[Grand Chief Tim Thompson]

I concur with Chief Montour with regard to certainty. There should also be certainty that there is an exemption for our first nations and certainty that there's another process and that the first nations are directly involved in making that process.

[The Chair, Conservative, Barry Devolin]

Thank you.

Grand Chief Delisle, did you have anything to add?

[Grand Chief Mike Delisle]

I also concur. I think Chief Montour said it very well.

To give an example, you talked about timing and timeliness and how quickly this may resolve some things. I know the status quo is extremely frustrating for many communities right now.

We submitted one about 10 years ago, and the response from the then negotiator was, “We should have an answer for you by January, or at the latest, February”. They just didn't tell us what year. We're still waiting.

[The Chair, Conservative, Barry Devolin]

Thank you, sir.

I think we're going to have time for two more turns. We'll have Mr. Albrecht and then the Bloc.

Mr. Albrecht, you have five minutes, please.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

I want to thank each of the witnesses for the time they've invested today.

In the consultation or talks today, whatever you want to determine this is, we've focused primarily on the tribunal aspect of Bill C-30, and we've overlooked the possibility of negotiations occurring prior to going to the tribunal. I think it's quite possible that in that negotiation phase, because of the eventuality of the tribunal, there may in fact be productive discussions leading to creative solutions that could possibly lead to settlements other than cash settlements. That's one point I would like to make, and maybe you could respond to that.

The second one has been mentioned briefly, which is that this whole process is voluntary. It's mentioned clearly in the preamble, and again in clause 5 of the bill, that the process is a voluntary process.

It's clear to me that Bill C-30 was designed to address the very severe problem of the number of backlogged specific claims cases. This has been a problem for decades. The current system is obviously failing all of us. It's failing first nations people as well as other Canadians--all Canadians. So this is an attempt to move ahead on a process that will help the entire country resolve outstanding claims. That's what all of us around this table want. I believe that's what everybody in this room wants: to move ahead.

Would you rather continue with the status quo? Some groups have come here and said they need amendments. But at the end of the day, they said they would rather have the bill in its current form than risk an amendment that would possibly bog down the entire system. So would you rather live with the current system, with its more than 800 backlog cases?

Second, in terms of the cap of $150 million, it's my feeling that if we remove the large percentage of claims that are within the system now, the smaller claims, it would allow the bigger claims to get more attention from the department so that these could in fact be settled.

Would you care to respond to those questions?

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Albrecht.

I'll start with Mr. Monture.

[Philip Monture]

Thank you.

I don't know where this great will to sit down and negotiate in good faith is coming from all of a sudden. We've been at this for a long time. We appeared before the standing committee, Chief Bill Monture and I, on February 21, 1991. Obviously, some of you are too young to even know that, especially the ladies on my right.

If there's an extinguishment in place, I don't care what bill you put in, it just isn't going to cut it. It will not cut it in our community, period. It has to be changed. There have to be good faith negotiations. I totally agree with you that Canada's specific claims policy is a failure. There's no doubt. We were in there for 20-some years and all we did was stockpile validated land rights, claims that have been validated. We have one on the table right now we're trying to harness.

There have to be creative solutions. There cannot be extinguishment of our children's rights on those lands. That's where it is.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Monture.

Fortunately, Mr. Monture, when you're sitting at a round table, all the ladies are on your right.

Chief Phillips, did you have something to add?

[Chief Randall Phillips]

Thank you very much, Mr. Chair.

Quickly, in terms of that response, there seems to be some assumption that the process is worth saving now. What's stopping this backlog of 800 claims? It's certainly not first nations communities; it's the honour of the government. So when it comes to those types of things, in terms of whether you change the system or not, the honour of the government, the honour of the crown, still needs to be there.

The backlog can be easily done regardless of what system you have in place. The reason it's changing is because the other one simply didn't work and there were too many controls by government to backlog the process. So I think the government needs to look inward in terms of trying to move these things forward.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, sir.

Chief Maracle.

[Chief R. Donald Maracle]

The first statement in the current policy talks about the return of the land as compensation. If we want to make that happen.... The government is very apprehensive about beginning a process to do that. If we simply ask Canada to go and approach the parties to buy the land, to see if they're willing to sell their interest to Canada, that shouldn't be a complicated process. Canada is unwilling to do that for some reason or other. They can advise land for all kinds of purposes in this country. Canada should be buying land to settle claims.

At the tribunal, we've heard loud and clear from all the chiefs here today that we're looking at regaining control of the land to satisfy the needs of our growing populations. The tribunal doesn't talk about the return of the land; it's strictly money. Extinguishment is not in our best interests for our future, so we can't endorse a policy that is about getting a land claim validated and then surrendering it to the government for cash. That does not meet the goals and aspirations of our communities.

[The Chair, Conservative, Barry Devolin]

Thank you, sir.

Grand Chief Thompson.

[Grand Chief Tim Thompson]

The government can't even get the consultation right and now they want to talk negotiation? Come on, give me a break here.

[The Chair, Conservative, Barry Devolin]

Grand Chief Delisle.