Indigenous and Northern Affairs Committee on April 16th, 2008

[Chief Phil Fontaine]

I would make the point, first of all, that we would never deny the opportunity or the right of first nations to present their own views, their own takes, their own opinions on any work as reflected in this legislation. We would be completely offside on that. That's why I made the point in my presentation that we have to respect the right of all to state their position on any given legislation such as this one.

The five-year review process is very, very important, because it will give us an opportunity to pause and reflect on the work leading up to the review period. I made the point earlier. I trust that the goodwill that was present in this process will also be there when the time comes to give very careful review of this process, this system, and the outcomes, and figure out together that if improvements are needed, those improvements will be brought into place.

We also have the political agreement. That represents the word of the government--and ours, of course. Clearly, the obligation and responsibility rests with the government to make sure their commitment as reflected in the political agreement will be honoured. Only time will tell if that will occur. Here again, I make the point that it's all about trust.

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

I want to come back to the point about land for a minute as well. I think it's important that we clarify that the issue of whether or not land can be awarded rests with the first nations group as to whether or not they want to enter this process. If they still wanted to continue negotiations, that avenue would still be open to them, in my understanding. In addition to that, with the political agreement that accompanies Bill C-30, there is a possibility for a first nations group that has been awarded monetary compensation to use that to purchase land that then could be added to a reserve.

Could you clarify that for us, please?

[Chief Phil Fontaine]

I'm going to ask Mr. Schwartz to respond to that question, sir.

[Professor Bryan Schwartz, Legal Counsel, Assembly of First Nations]

The Assembly of First Nations proposed what the federal government accepted and is now clause 5 of the bill. It provides that participation is strictly voluntary. The rights of no first nation are affected unless it chooses to participate. In a recent session, someone asked why anyone would object to a voluntary provision that helps a lot of people. The response was that there would likely be no objections as long as there was assurance that rights would be protected.

Clause 5 provides that assurance. The Assembly of First Nations also secured a political agreement. That political agreement recognizes the cultural, spiritual, and economic importance of being in a position to replace or reacquire lost land. There is no guarantee, but the importance of being able to do this is recognized. There's a commitment on the part of Canada to review the policy on additions to reserve with a view to making it easier to achieve. It has often been difficult in the past. There's an immediate commitment to give priority to additions to reserve in the context of claims.

To be clear, any first nation within the jurisdiction can file a claim, can pursue the process as long as it wants. It's never required to put itself in a situation where it's facing an award that would extinguish its right. It's an option, but first nations that don't want to be put in this position are not required by participation in the process to go to the last step.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Schwartz.

Mr. Roy, from the Bloc Québécois, you have five minutes.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

Chief Fontaine, thank you for being here, as well as your team.

In your remarks, I noticed an element that seems to me to be important. You often say that we must show good will, that this is all about trust and that we must tell First Nations people that their rights are just as important as the rights of all the other citizens of Canada and of Quebec.

But one point suggests to us that you do not trust the government as much as you seem to be saying. You said that at the time the consultations on aboriginal claims began, the Fisheries Act, over 100 years old, was renewed and that you seem not to have been consulted, at least sufficiently so, on the amendments to the Fisheries Act.

We know that this is extremely important for First Nations from the west coast, the east coast, the centre or the north. I sat on the Committee on Fisheries and Oceans for five years. I saw everything that happened on the west coast in connection with the Fisheries Act, which is extremely difficult to apply.

That was your example. Does that mean that you trust the government only in this present process? You said that this process poses no problem but that the federal government does not automatically think to consult First Nations on matters that concern them, including the Fisheries Act.

Did I understand your message on the subject correctly?

[Chief Phil Fontaine]

I certainly don't want to give mixed messages or leave you with the wrong impression.

The questions that were posed and that I responded to here have to do specifically with Bill C-30. And I described how we entered into the process, the fact that we had to bring some trust to the process, and that there was goodwill in the process on the part of both sides.

Trust and goodwill and the success that resulted from ensuring that we were an integral part of this collaborative process--because that's what it was--ensured that this would be successful, or as successful as we could make it. That's why I come here, certain that this will bring about the kinds of changes that first nations have been seeking for a long, long time. I said 60 years. It's beyond 60 years, but 60 years is when government started making an effort to resolve these land matters.

In terms of other issues, and the role of the Assembly of First Nations in these other issues, and whether I'm satisfied that the government has treated us fairly in terms of addressing those issues, that's a different proposition. That's an entirely different question. I mentioned matrimonial real property, the repeal of section 67, fisheries, water, the United Nations Declaration on the Rights of Indigenous Peoples, the current work related to the Organization of American States and the declaration of aboriginal peoples in that regard. I could list a whole number of issues where I have been really disappointed and bothered by the approach taken by the government.

First of all, the Assembly of First Nations is a legitimate political organization. It represents distinct peoples with rights that are unique to them. We are as legitimate as you are, representing the BQ; as you are, representing the NDP; as you are, representing the Liberal Party; and as you are, representing the government. We're not less than you. We shouldn't be treated less than you. We're important to Canada. Our issues are important to Canada. The fair and just resolution of our issues is important to Canada.

Because we represent distinct peoples with unique rights, with interests to the land that are different from any other Canadian, you can't expect us to come here and do your bidding for you, the government. You should trust that when we have something to say, our position and our statements have as much validity as your statements, your words, and your positions. We can't be treated any less than that.

We've demonstrated that when we're treated with respect, with integrity, with appropriate goodwill, we achieve success. But governments can't pick and choose on what issues they're going to treat us with respect. It doesn't work that way. That is why I was very concerned when there was a suggestion that the fact that we had asked to be last here was somehow demonstrating our lack of confidence in our work. How could that be? I couldn't come here and criticize our work, because it is ours. The outcome before you, the piece of legislation before you, is a direct result of our joint efforts.

I just wanted to make sure today that whatever I had to say didn't take away from the good work that went into this piece of legislation, because it is indeed good work and it will bring about some real improvements, positive improvements to our communities.

On other issues, as I said, I'm so disappointed. I've committed myself to working with this government, making every effort to establish a good, respectful relationship with the government, and through the process of an effective, respectful relationship convince them that our agenda should be theirs as well. We shouldn't be treated as an afterthought. Our views shouldn't be disregarded. We want to make a difference in the lives of the people I represent. We have some huge challenges, and I have some very serious concerns about some of the issues where the interests of first nations people have been completely disregarded.

For example, the suggestion that we're against the human rights of women is a complete fabrication. We are for human rights for all our people. The suggestion was that because we wanted a three-year delay in the legislation, BillC-21, this meant that we were not prepared to extend protection to the most vulnerable in our community. All we were trying to do there was make sure that our interests were treated the same as you treat your own interests. Governments that have greater capacity than we will ever have at this point were given three years to ready themselves for the charter, when the charter came into force. We were offered six months. So when we pushed for greater time, we were accused of undermining the human rights of women. That isn't so.

I appear here before you deeply committed, as are all the people I work with, to the human rights of all our people.

Think of this for a moment. There are approximately over 100 women chiefs in Canada. There are approximately 800 women councillors. Do you think those people are against the human rights of women? Of course not. Absolutely not.

[The Chair, Conservative, Barry Devolin]

Thank you, Chief Fontaine.

Next is Mr. Clarke, from the Conservative Party. You have five minutes.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Chief.

As a committee, we're sitting here today, and I'm excited. We're going to see something here for our generation get completed in regard to land claims. For first nations peoples, I feel it's been long overdue. The 800 or more claims need to be resolved for our future generations.

Chief, thank you very much for coming here. It's an honour being able to sit here on this committee.

The one question I have is basically the amendment to remove the $150-million cap, which could lead to the tribunal using most of its budget on just a few cases while doing nothing to remove the backlog of these claims. I'm wondering what you think of this.

[Chief Phil Fontaine]

I made the point earlier, and I'll make it again. The political agreement is designed to deal with the large claims, those over $150 million. We've been assured that each of these claims will be addressed case by case and that the decision to deal with these large claims will ultimately be made by cabinet. We accepted the undertaking we were provided with by the federal officials we were involved with in this process, and I have seen no reason, up to this point, to convince me that the commitment in the political agreement will not stand. So I believe that what we have before us, the legislation, Bill C-30, together with the political agreement, will enable us to deal with the vast majority of specific claims in the country.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you.

[The Chair, Conservative, Barry Devolin]

Next we have Ms. Crowder, from the NDP. You have five minutes.

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

Thank you, Mr. Chair.

Having been through this process now, and seeing the number of issues that are facing aboriginal communities, and the numbers of opportunities there are to build on this process--and you did mention time and resources--I wonder if you have some thoughts about how this process could be improved for future legislation, or legislation currently in the loop that could use some assistance in terms of making it more reflective of the needs of the communities.

[Chief Phil Fontaine]

Bryan?

[Prof. Bryan Schwartz]

A lot of things went right in this process, which I think the national chief has said could be usefully deployed to other issues.

If you just look at the track record, according to the national chief's record, if you don't consult with the AFN the process goes off the rails; you get a lot of objections. On the other hand, you have this signal success with Bill C-60. Some people thought it could have been a lot better, but there was very strong support expressed. I think the bill has stood up very well to very rigorous scrutiny by witnesses in this committee.

What went right was there were intensive technical negotiations and support for that, and high-level political oversight of those technical discussions, so that when there were difficulties and you needed political direction, you could get it. We had Mr. Bruce Carson from the Prime Minister's Office engaged with Vice-Chief Atleo, so there was always a political connection to make sure that the technical process was in touch with the political realities and could get instructions as needed.

The national chief indicated that some parts of this process could have been a little bit more successful. We needed just a little more time, once the bill was ready, to go out and explain it to communities and get feedback. The Assembly of First Nations has indicated on a number of occasions that more resources would have been useful to engage in regional consultations.

But the basic framework of negotiating in partnership, of having both political oversight and intensive discussions--they may be improving that a bit by more resourcing for regional and community discussions to make sure there's no possible disconnect between that table and what's happening in the communities--seems to be a formula for success.

Not only can you compare it with other processes, but you can compare it with earlier exercises in specific claims. The joint task force report worked well because it was that engagement; Bill C-6 went way off the rails because the federal government discontinued consultations. In terms of Bill C-30, there's partnership from beginning to end, after Justice at Last was announced, and now we've achieved that point, which we believe is very successful.

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

In terms of the voluntary nature in this bill, the way I see it is that people can choose to participate in this process, but if they don't, litigation is their option. Is that accurate?

[A voice]

Yes.

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

National Chief, when we were talking about the larger claims, you talked about capacity for research and sufficient resources to take a look at what's involved there. Were you talking about that in the context of the political agreement?

[Chief Phil Fontaine]

That is, but you have to look at it in the context of all things.

One of the serious shortcomings in the current system is that we don't have the capacity or the resources to undertake the kind of research required to bring the claims forward. That's always been a huge problem, and it remains a big problem.

For example, I made the point about oral history. People know the things that are wrong. They know their land. They know what has happened to their land, in the cases where land was either taken or stolen outright or sold off by government. They're well aware of this. But you have to be able to document your case in order to bring it forward. As I said, if you don't have the resources to do that, that kind of issue will languish and will remain problematic for a long time.

We have to figure out a way of ensuring there is research capability in our communities, and we're talking here about making sure there's money.

[The Chair, Conservative, Barry Devolin]

Thank you.

Next, from the Conservative Party, is Mr. Warkentin, for five minutes.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

Thank you, Chief, for coming this afternoon. We appreciate your coming and your testimony on this and the matters you've brought to the table today.

I have the opportunity of representing some of the people you represent as well. I have a number of aboriginal communities in my riding, and throughout the northern part of Alberta I'm in contact on a regular basis with some of our chiefs and the different people from within the aboriginal communities, both on reserve and off reserve.

I've actually had the opportunity to work with a number of members from these communities who are quite excited about this bill. Actually we had some people from Alberta who testified before our committee, including former member of Parliament Willie Littlechild, who was also involved in this process. He brought his perspective to the table as well.

There's no question that communities are excited about this. This is only one of the pieces of the puzzle that need to come together to ensure that development can go forward. That's really, I guess, my perspective.

What I've been able to witness and see is that the communities within my riding that have had the opportunity and the ability and the leadership to develop their resources and the flexibility to do that have been the ones that have been able to grow and develop and serve their community and the members the best.

This bill has an impact on the ability of these communities to move forward. I think that, more than ever in our history, time is of the essence, as we're seeing so many opportunities missed by many of these communities because they're dealing with specific claims or claims that, if not resolved, lead to a missed opportunity to either develop or to be able to take advantage of something.

I'm wondering if you could just speak in terms of the timeframe that you would see being acceptable as we move forward. I know there are processes that we as members all have to appreciate and all have to undertake and work towards. I'm wondering if in your mind you have a perspective as to at what point this legislation would be able to be implemented.

[Chief Phil Fontaine]

When we first were offered this opportunity, our understanding was that we would be able to bring this into force fairly quickly. So we were dealing with a very short timeframe. That impacted on our ability to engage our community to the extent that would have been, I suppose, better for a number of our communities. But I also made the point earlier that what we have here is the result of years and years of hard work on the part of many people. It's not as if this emerged out of a vacuum. It had a very strong base, a very good foundation in the elements of the legislation, including an independent tribunal able to make binding decisions, judges sitting on the tribunal, $2.5 billion over ten years, and a review period that kicks in after five years. This had all of the elements of success.

We thought we would finally be able to bring about a fair and just resolution to the many outstanding claims. This is, I believe, an important point. We didn't look at this as.... And here I'm referring to claims in isolation. We were talking about an opportunity not just to settle these claims but to revitalize first nations economies in many parts of the country. If you take the $2.5 billion over ten years, the leverage factor is just enormous. So we're talking about bringing about some major changes that will benefit and improve the lives of our people, and also benefit—

[Chris Warkentin, Conservative, Peace River, AB]

Yes, there's no question. And I do appreciate your efforts in terms of moving forward and the involvement you had at the forefront. I'm certain we will appreciate and reflect that as we work through our deliberations as well.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Warkentin. Sorry to cut you off.

In terms of a bit of housekeeping, that completes our second round. We have a bit more time, so if I cut this down to four minutes, I can give the Liberals, the government, and the Bloc one more turn.

Perhaps you could please just ask one question, and then we can get one answer and we can move through this.

Ms. Keeper.

[Tina Keeper, Liberal, Churchill, MB]

National Chief, when you referenced an oversight committee, could you elaborate on what you think the role of that committee may be or how it may be a part of this process?