Indigenous and Northern Affairs Committee on April 14th, 2008

[Grand Chief Tim Thompson]

Thank you.

Ladies and gentlemen, members of the Standing Committee on Aboriginal Affairs, first nations communities, chiefs, and councillors, my name is Tim Thompson. I am Grand Chief for the Mohawks of Akwesasne, a community of approximately 12,000 Mohawks who reside on ancient aboriginal territory along the St. Lawrence River.

Akwesasne has a unique geographical and political location between the countries of Canada and the U.S. and the provinces of Ontario and Quebec and New York state. Our community has been involved in several land claims with Canada over many years. Some of our claims are very large. Some are currently being negotiated. Some are being litigated. Some have been in the process for more than 30 years. Some have been rejected. And there will definitely be some Akwesasne claims that will be impacted by this legislation.

We come to the standing committee because we have not been consulted on the new Specific Claims Tribunal, Bill C-30, and we want to bring our concerns forward on this impending legislation.

We believe that the first of many shortcomings surrounding the new bill is the lack of direct consultation with first nations communities. AFN does not represent the Mohawks of Akwesasne. We are a member of the Independent First Nations of Ontario and the Iroquois Caucus, neither of which have had meaningful consultation in this process. Some very important issues, such as claims over $150 million and some additions to reserve issues, have not yet been resolved, even though Canada and the AFN recognize that there are many unresolved issues with regard to this new legislation and have proposed that these concerns will be negotiated through political agreements with AFN.

Without a consultation process, communities like Akwesasne will have no part in the building of legislation that will ultimately affect them. Akwesasne, therefore, does not know the future outcome of some very important issues, if in fact we will be consulted, or if the issues will be resolved to our benefit.

At present, Canada has aligned itself with the Assembly of First Nations as the main counterpoint to the negotiations to move Bill C-30 through Parliament. Akwesasne considers this very political approach to consultation with first nations inadequate. For important legislation such as this, which will impact the relationship of the crown and first nations for decades, real and meaningful consultation must be held with all first nations.

Canadian courts have stressed that negotiation is preferable to litigation to resolve aboriginal claims. The Specific Claims Tribunal will create a new level of litigation in claims, with many of the disadvantages of the court. For example, the political nature of the claims permits them to address flexibility. The tribunal, in contrast, would only be able to offer cash. The political nature of negotiations allows communities to have real control over the outcomes. The tribunal would give increased authority to the lawyers. In court, if you make a statement of claim and the statement of defence raises new issues, you have a right to reply. With the new tribunal, you have no right to bring the evidence to rebut the grounds of the rejection of your claim. It appears to us that the tribunal has a more limited range of processes and remedies available to it than the Indian Claims Commission did.

The present Indian Claims Commission has worked hard to establish a reputation for impartiality. We worry that the new tribunal will be seen as Canada's attempt to replace an impartial body with one that will be more favourable to the federal government's position. One of the most significant issues is the makeup of the tribunal. Currently, Bill C-30 proposes that Canada will appoint Superior Court judges, of which only one will hear any particular claim. We do not believe that decisions on claims should fall to just one judge. Additionally, the selection and appointment process for the members of the tribunal is not reassuring. It is only in the political agreement, not the legislation, that consultation with AFN regarding the recommendation of judges to the tribunal is proposed.

Depending on the makeup of the tribunal, it might provide federal claims officials and negotiators with an incentive to reject claims or have negotiations break down, as the tribunal could be seen as pro-federal rather than impartial.

Bill C-30 will also create a more structured approach to specific claims, which will have the effect of providing very little flexibility to the tribunal to address the unique and complex circumstances that have created the claims in the first place.

The new act provides for monetary settlement only. Other creative solutions or options, which may be more reasonable, productive, practical, or restorative, will not be entertained.

Most claims are about land. The fact that the tribunal can only award cash means it would not be able to address many claims in a way that would satisfy the claimants. The fact that the courts can deliver land at least more often than the federal system will promote litigation. Bill C-30 will completely eliminate the ability of first nations to bring any discussions or studies relating to the social, cultural, and spiritual connection to the land as part of the negotiating process to settle a specific claim. Bill C-30 clearly makes this a non-negotiable issue.

The political agreement states that:

...resolving claims is a legal and moral obligation, and recognizing the cultural, spiritual, social and economic significance to a First Nation of recovering or replacing land that was unlawfully taken.

The words are beautiful, but they fall far short of one important component. They do not allow for the discussion or negotiation regarding injuries to culture that are associated with loss of land. First nations know the impacts of injury to culture that have occurred with loss of land. This obvious injury should not be ignored.

The new legislation proposes to exclude claims in excess of $150 million. This exclusion is something the AFN proposes to address through a political agreement. Meanwhile, its exclusion will allow government officials to coerce first nations to artificially devalue their claims to fit the current criteria. With a cap on the size of the claim that the tribunal can address, federal negotiators will be tempted to collapse negotiations on large claims knowing they have nowhere else to go, while there will be pressure on first nations to accept less than fair value for their claims to bring them under the cap if a claim goes to the tribunal. The presence of the tribunal as a process for settling smaller claims will be accentuated as a further excuse for avoiding settlement of larger claims.

The larger claims represent the greatest benefit for first nations and the greatest accumulated debt on the part of the federal government. However, with a limited annual budget and a fascination with statistics, Canada prefers to resolve smaller claims. If the tribunal is not able to address the larger claims, these larger claims will be further deferred and become even less likely to be resolved. With the cabinet looking at these claims, it surely shows there would be no transparency about the decisions that are made, as these decisions will be made behind closed doors.

With the Iroquois Caucus, many of our claims are above $150 million. When Canada says there are 20 claims in excess of $150 million, sitting at the table are probably 16 of those claims.

One major obstacle to settling specific claims is the lack of clarity in Canadian law. Currently, only the courts can clarify the law, but litigation is currently being discouraged. Unless the rules and practices governing the claims process, including those proposed for the tribunal, are clarified and expanded, claims will remain unresolved.

Bill C-30 also appears to place into legislation the retroactive surrender of lands originally taken illegally as a consequence of settling a specific claim and receiving compensation. There will be no future options available on this point if this legislation is passed by Parliament.

In conclusion, I would like to say that the AFN is not a first nation and does not speak for all first nations in Canada. Akwesasne wishes to make it abundantly clear that support by the AFN does not translate into acceptance of the specific claims bill, Bill C-30, by the first nations who are affected by this bill. It is important that Canada honour its obligation to first nations communities to consult with them regarding the legislation that will affect their claims and their future.

Before I end, we make the following recommendations:

A bona fide consultation process must occur with full participation of first nations communities.

Revisit the terms of reference, capacity, authority, and remedies available to the tribunal.

The make-up of the tribunal should be composed of a variety of disciplines and should include first nations members.

The tribunal should be a three-member panel, one being a Superior Court justice and the other two members representing other related disciplines appropriate to the circumstances of the specific claims, all having an equal voice.

The settlement solutions available to the tribunal should include land, financial, and other creative components in a manner that will satisfy the parties.

There should be consultation with first nations to ensure that the political agreement provides for the discussion on restorative justice with regard to injury to culture associated with the land.

There should be consultation with first nations to ensure that the political agreement provides for the discussion on claims above $150 million.

Consultation with first nations should occur to ensure that the political agreement provides for clarity in the rules and practices that are used in the settlement claim.

Consultation with first nations should occur to ensure the political agreement provides for discussions on options regarding the surrender component of claim settlements.

With that, I thank you. Nia:wen.

[The Chair, Conservative, Barry Devolin]

Thank you, Grand Chief Thompson.

And now for the fifth presentation, from the Mohawk Council of Kahnawake, Grand Chief Mike Delisle.

You have 10 minutes, sir.

[Grand Chief Mike Delisle]

Thank you, Mr. Chairman.

Before I begin, I'd like to acknowledge the panel here today, as well as the other chiefs and councillors who are here with our sister communities, our elders, and the elder who has given me the opportunity to speak for us today on behalf of the people of Kahnawake.

I'm Grand Chief Mike Delisle Junior. Greetings from the Mohawk community of Kahnawake, near Montreal.

We are a community that has a significant place in the history of this country since before European contact. Kahnawake itself has contributed to the establishment of the communities of Huronne-Lorette-Wendake, near Quebec City; Kanesatake at Oka, Quebec; Akwesasne near Cornwall, Ontario; Wahta near Bala, Ontario; and Nipissing near Sturgeon Falls, Ontario. We can trace some of our descendants to Manitoulin Island, Ontario, and the Michel Band in Alberta.

The Mohawks of Kahnawake have been central to the founding of this country of Canada, and a relationship exists between our peoples that can be traced to the relationship formed in pre-Confederation treaties. Peace, honour, and respect are our governing principles, and our relationship with Canada is based upon these founding principles. We take our crown treaties and our relationship very seriously, and we are bound by the mutual promises made by the crown and by our people. Our treaties are not the numbered treaties of Canada.

We have asked, and we are called before you, to comment on the proposed Bill C-30. This has been on our minds since the tabling of the proposed legislation. We present the following concerns for your consideration.

There has been lack of broad consultation on the proposed legislation. The fact that the Assembly of First Nations has collaborated with the Government of Canada in this enterprise does not automatically mean that all Indian organizations or communities are in agreement with this most important and significant piece of legislation, since many communities are not represented by the organization known as the Assembly of First Nations. The fact that four Assembly of First Nations regional chiefs--all westerners--and officials have worked hand in hand with the Prime Minister's office and the Department of Indian Affairs to draft this legislation does not mean that all communities across this country have been consulted and/or agree with this legislation. In fact, your committee has heard from one of the drafters of Bill C-30, Chief Lawrence Joseph, that no consultation on the development of the content of the bill occurred.

There are communities, like Kahnawake, that do not form part of the AFN structure. There is a national perception that the AFN represents all aboriginal communities, and there is advance celebration hailing the cooperative nature of the drafting of the legislation. There is a perception that all dissension on the issue of specific claims has been dissolved through the auspices and involvement of the AFN in the drafting of this legislation. We state for the record today that this is not so.

The community of Kahnawake is fully able to negotiate and enter into agreements without the assistance or approval of the AFN, and we will not be tripped up by the agreements and legislation that the national organization has entered into without our approval or support. Agreement with this proposed legislation requires the full agreement and consent of the full council of Kahnawake and other first nations councils, not just a few chiefs in a closed meeting of the AFN. Kahnawake has a serious obligation to look at this legislation so as to avoid further conflicts with the Canadian people.

While many Mohawk communities have grievances well over the proposed $150 million cap, the federal policies that are intrinsic to specific claims have the possibility of becoming the law and therefore the power to overshadow negotiations of larger special grievances.

We believe this legislation would have the effect of tying the hands of the federal negotiators on possible win-win outcomes of negotiations. Such measures will leave our communities dissatisfied with any proposed settlement. This is not relationship building. It is most important to keep in mind that the Iroquoian communities in the eastern region of Canada, and particularly Kahnawake, have important grievances that have relevance, particularly with the British crown, from 1760 onward. Our community wishes to be treated fairly, and the honour of the crown demands that our lands be protected as promised.

Removing the large-value grievances from the application of the tribunal process does not remove the impact of the legislation of these policies made into law. We believe there will be an impact through the legislation of what was once policy and that there will be a major effect on the larger grievances.

When Kahnawake proposes new or creative solutions on our grievances, we don't want to hear from federal negotiators that their hands are tied by this legislation.

While no amendments to proposed Bill C-30 are acceptable, here are issues embedded in the proposed legislation that concern us.

Bill C-30 proposes to make a law that will legislate all of the shortcomings of the current federal specific claims policy and Canada's approach to limit negotiations. It will offer inadequate monetary-only settlements for lands that have a great social, cultural, and spiritual connection for the Mohawks of Kahnawake. Money is not the solution here for us: we want land.

Such legislation will likely impact all stages of the specific claims process, including larger claims valued over $150 million that need separate cabinet authority, which should include a resolution of those grievances outside the specific claims policy and which is inadequate to deal with special grievances.

The proposed law would leave very little flexibility for the tribunal to address the uniqueness and complexities of historical land grievances submissions.

Example: The proposed bill will limit the compensation for a settlement to monetary values and limit options like return of land or other considerations that could be explored for resolutions. Furthermore, the bill should not permit Canada to download the responsibility for settling with the first nations their valid land grievances to third parties, including the provinces, which cannot opt not to take part in the tribunal's proceedings and decision. The bill proposes the crown would pay compensation only to the extent of their actions.

The Mohawks of Kahnawake do not agree that as a consequence of receiving compensation, all of our interests in these lands must be released to Canada, and in that process the third parties' interests become retroactively validated to when the land was taken, which the Mohawks of Kahnawake believe would be unconstitutional.

Why do we think this is unconstitutional? The royal proclamation requires lands to be alienated only to the crown through its approval at public community meetings specifically for that purpose. The Constitution says we have protections for our territories. Our treaties with the crown say the same thing. The Constitution affirms my people's rights, and if the Government of Canada has a fiduciary obligation to protect our land, then how is that function served?

What is being asked, then? Is this first nation giving up their right to their territories, to third parties in a roundabout way or indirectly? How is it that the proposed Bill C-30 can ask my community to validate third-party rights over the rights of my own people? I believe this legislation would be an end run around the royal proclamation.

Again, to simplify, lands can only go to the crown by referendum of the whole community. If the Constitution recognizes or affirms our rights, then we question the objectives of this proposed law, where a third party suddenly is positioned in advance of our ancestral rights to the lands. We have other treaties stating that the crown promises to protect us in our lands, and this proposed law does not do this. It has the effect of superseding your Constitution indirectly. If you are not able to circumvent the Constitution or cannot do directly what you seek, then you cannot do this indirectly through this legislation.

In fact, the 1982 specific claims policy allows return of lands, cash compensation, and other considerations. To be more detailed once again, the specific claims policy is problematic, yet Canada plans to legislate a more encompassing requirement for release of all interests in the lands that were illegally taken from our communities when the policy does not require release of all interest in alienated land. It is the interpretation of the Indian Act surrender clause that does. So legislation putting into law more restrictions is not conducive to settlement.

Finally, the crown, as well as the independent tribunal process, should promote reconciliation with particular emphasis on our historic and continuing relationship with the crown. So it would be more appropriate to have the tribunal composed of individuals from a variety of disciplines and backgrounds, including first nations individuals, not just Superior Court judges solely appointed by the crown.

Again, Canada has a legal obligation to consult all first nations that could be impacted by Bill C-30. Considering that the requirement of retroactive release of all interests in favour of third parties does impact first nations, this should trigger the obligation. In fact, all first nations should be made aware of all proposed legislation and what the impact may mean for our communities. Consultation is a requirement that we see in extensive, ongoing discussions on claims, yet the requirement seems one-sided, since we are rushing this proposed legislation--a lack of consultation from the crown side.

The Mohawk Council of Kahnawake does not agree with the AFN's endorsement of Bill C-30, and Canada's consultation with the AFN is not sufficient or acceptable, especially in consideration of my community's treaty history and current history, where confrontations have occurred generated by a lack of consultation.

The Mohawks of Kahnawake also cannot support that the AFN can represent us in the political agreement, which was signed by the AFN national chief and the Minister of Indian Affairs, on claims issues not addressed in Bill C-30.

Lack of consultation is a breach of Canada's legal obligation and further tarnishes the honour of the crown. If you continue with the bill as is, without wider consultation, it would be a significant defect in your legislative process and could promote challenges to the legislation.

In summary, the Mohawks of Kahnawake recommend that Canada be reminded of its constitutional obligations and not be allowed to propose legislation to do indirectly what they cannot do directly on the issue of first nations lands.

The Mohawks of Kahnawake recommend that the standing committee inform Parliament that Bill C-30 is flawed, that it is not ready to move forward, that no amendments will make Bill C-30 acceptable, and that Bill C-30 be withdrawn,

The Mohawks of Kahnawake recommend that the standing committee inform Parliament that any future specialized tribunal developed pursuant to a bill must be truly representative of first nations involvement, with a broader mandate and greater flexibility to address different steps in the resolution process and to take into account the wide variety of contexts.

The Mohawks of Kahnawake are fully prepared to engage in consultation, developing a fair process with alternate approaches to resolving larger and smaller land grievances.

We also recommend a principled approach that addresses our mutual concerns and furthers our relationship.This should be the basis for resolving grievances.

Thank you, Mr. Chairman and committee members. Subject to any comments or questions, this is the presentation for the Mohawks of Kahnawake on this important proposed legislation. In the spirit of co-existence, we thank you.

Tho niawenake.

[The Chair, Conservative, Barry Devolin]

Thank you very much, Grand Chief Delisle.

That completes our presentations. Now we will begin with the questioning. The first round is seven minutes each, and I will begin with the Liberal Party.

Ms. Neville.

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

Thank you very much for being here today. Thank you very much for the thought and the work that has gone into your presentation. It's certainly been a very powerful presentation. So many questions are coming out of your presentation--and I have talked with some of you beforehand.

You raise the issue of the duty to consult, and you certainly have your concerns about the process that was undertaken between the government and the Assembly of First Nations. In the best of worlds, how would you see a consultation process on this issue taking place?

I open that up to whoever would like to respond.

[The Chair, Conservative, Barry Devolin]

Those of you who would like to respond, just give me an indication.

Chief Montour.

[Chief Bill Montour]

I would suggest the Government of Canada contact our community and ask what our consultation protocol is in any areas where legislation is going to be proposed that's going to affect us.

[The Chair, Conservative, Barry Devolin]

Thank you, sir.

Chief Phillips.

[Chief Randall Phillips]

Yes, thank you, Mr. Chair.

To me, the answer is simple. It's that we already have a traditional governance that had signed treaties here. Those are the people we're talking to; those are the people this government should sit down and try to deal with to resolve these issues.

[The Chair, Conservative, Barry Devolin]

Thank you.

Chief Maracle.

[Chief R. Donald Maracle]

Get away from the idea that one shoe will fit all feet. Numerous pieces of legislation could be involved that are culturally appropriate to the first nation that's involved. For example, the Iroquois communities may need a very specific process, and I think our experts should be involved in jointly drafting the legislation with the government. There should be an opportunity before that draft report is tabled in the House of Commons for it to be discussed in our communities with our people.

[The Chair, Conservative, Barry Devolin]

Thank you, sir.

Grand Chief Thompson.

[Grand Chief Tim Thompson]

I concur with Chief Maracle. If you want real consultation, then bring the hearings to the first nations communities. Hear it directly. Hear what we have to say in our communities.

[The Chair, Conservative, Barry Devolin]

Grand Chief Delisle, did you have anything to add?

[Grand Chief Mike Delisle]

I concur with everything that's been said, but also stop using the Assembly of First Nations as the sole authority, as the only source of information. As we've stated here today, and other people who are not with us here today have stated nationally, they don't speak on our behalf. The duty to consult rests with the crown. So it needs to be taken seriously by the Government of Canada, who should not be using just the secretariat body of AFN.

[The Chair, Conservative, Barry Devolin]

Thank you.

Ms. Keeper, you have just a little under four minutes left.

[Tina Keeper, Liberal, Churchill, MB]

Thank you very much, Mr. Chair.

I would like to thank our presenters. It was an excellent presentation, and it was certainly an important one in that the AFN has been in a joint process with Canada to write this piece of legislation.

Many of the issues you raised, the points you raised around the tribunal's jurisdiction, a broad release of rights, and the lack of consultation...from your perspective, all these issues have been raised numerous times at this table. I believe, though, Grand Chief Thompson made a statement in which he said there are 16 of the 20 large claims....

Is that correct?

[Grand Chief Tim Thompson]

There are a number of them sitting at this table today. Canada says there are 20, and there are probably 10 or 12, maybe more than that, from this community that are large claims. I know Akwesasne is one of them.

[Tina Keeper, Liberal, Churchill, MB]

Okay. On that point, I'd like to ask all of you to comment on a presentation that was made here by the Canadian Bar Association.

One of the things they said is:

A peculiar aspect of the bill is what seems to be a rather arbitrary limit on the Tribunal's monetary jurisdiction.

It goes on to say:

This limit could also operate to preclude the Tribunal from adjudicating ancient, historic claims which are relatively straightforward in nature, but simply because of the time elapsed are now expensive to settle. This is an inappropriate restriction.

Could you comment on whether you think that's a fair statement or whether you think it's pertinent for us to look at this in terms of the context of the large claims and in terms of the context of the jurisdiction of the tribunal?

[The Chair, Conservative, Barry Devolin]

Mr. Monture.

[Philip Monture, Lands Researcher, Six Nations of the Grand River]

Thank you so much.

As far as the size of the claims is concerned, there are many that are going to be beyond the $120 million, and that's where we have to come with creative solutions for that.

Bringing forward these amounts, we're going to be eliminated. We're not going to be able to be one of the shoes that fits all the feet here. We're just not going to fit.

I think what's happened is we're going to miss the boat here, and the only way to get the attention of the government after that point, if the honour of the crown is not going to be upheld and come to the table freely...we're going to have to get in people's faces. This promotes the far more negative aspect of unsettled claims, which we want to avoid.

Just to give you a very small example, on Caledonia itself, $50 million has been spent and not one thing has been settled, and we're nowhere near settlement. It's very, very unfortunate. When this was tabled in 1988, Canada sat on it and sat on it and sat on it. That's their resolution. They were afraid to face the reality of it, and that's where we are today. It's unfortunate, but that's the way it is.

[The Chair, Conservative, Barry Devolin]

Thank you.

Chief Phillips, did you have anything to add?

[Chief Randall Phillips]

Thank you, Mr. Chair.

In response to your question, I think what we're looking at is that the tribunal itself is inappropriate. So with regard to this notion that the limitations or restrictions on what authorities the tribunal does have could be tinkered with, we're suggesting that it's not independent. There are too many flaws in it. So the answer from Oneida is no, there's nothing that could be done in terms of correcting the tribunal to address those issues.

Thank you.

[The Chair, Conservative, Barry Devolin]

Chief Maracle.

[Chief R. Donald Maracle]

The tribunal cannot exercise the rights of our people. The right to decide to alienate property rests with our people. That can't be exercised by any other party, including the tribunal.

A large number of claims would be affecting our community. We have 13 different alienations. The legality of many of them are questionable.

Also, the crown cannot legislate away its fiduciary responsibility to our people to protect our land from fraud and trespass, and it's the fraud and trespass that we're trying to correct. We're simply asking Canada to approach the parties that are occupying the land that we hold valid legal title to, to see if they would sell that land to the crown so that the crown could do the honourable thing and return that land to our people.