Indigenous and Northern Affairs Committee on May 7th, 2009

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I have to be honest with you: every month might be a little difficult. I can tell you, though, that the Quebec Cree and Naskapi issue will be settled this afternoon. With Bill C-28, a lot of the work has been done.

You have our support. Obviously, it is not normal for it to take a hundred years to settle these claims, because the more time that goes by.... I would like to read an excerpt from a document that was sent to us, the Treaty Research Report Treaty One and Treaty Two from the Department of Indian and Northern Affairs:

In retrospect, Treaties One and Two were the instruments of a post-Confederation government policy [careful, that blow will be felt] that was designed to protect the Indians while providing a basis for their peaceful assimilation into Canadian society.

It is not me saying it; it is the government. You understand that I do not agree with this. So I think that, over the next few years, we will be seeing each other more often than you think.

Thank you.

[The Chair, Conservative, Bruce Stanton]

We'll close on that. Thank you, Monsieur Lemay.

Maintenant, Monsieur Clarke, pour cinq minutes.

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

Thank you, Mr. Chair.

I'd like to thank the witnesses for coming here.

I understand that one of the chiefs here has an election today. The elections are all done? Oh, good. My election on my home reserve just finished here last month.

I'm from Saskatchewan. I come from an RCMP background, and both my parents served in the armed forces.

Just hearing what the Bloc said here today really alarms me. They seek out confrontation. That's how people get hurt—that's my stand—and I don't agree with it. We'll just stick to the issues here today.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I rise on a point of order, Mr. Chair.

Mr. Chair, it is unacceptable for a government member to say that we only seek out confrontation. That is unacceptable in the House and, especially, in this committee. That is not what I am trying to do.

We are studying a file that affects aboriginal peoples, and it is not us seeking out confrontation. I think the member should be called to order.

[The Chair, Conservative, Bruce Stanton]

In fact, it's not a point of order; it's a point of debate.

Mr. Clarke, carry on with your questions. As I said earlier, Mr. Clarke, we're trying to keep the content--albeit there are a range of issues that we can speak about--focused on the Auditor General's report as it relates to treaty land entitlement for Manitoba. If we could zero in on that topic, that would be terrific.

Go ahead, Mr. Clarke.

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

I just know there was mention of a blockade.

What I understand here—and if I can get some clarification—is that over the progress of the past four years, there are 150,000 acres that have been allocated for each year. Now, does that represent about 10 times the average amount set aside from the preceding nine years?

[Carl Braun]

If I understand your question, you're looking to see if the 159,000 acres represents—

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

I mean the 150,000, or 159,000, that have been allocated over the last four years. Now, have you guys been progressing? Is it 10 times the average yearly limit or amount set aside during the preceding nine years?

[Carl Braun]

I'm not clear on your question. Can you try to rephrase that?

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

Basically 150,000 acres over four years represents more than 10 times the average annual amount set aside during the preceding nine years. I'm just wondering if that's correct. It was the testimony of Sara Filbee.

[Carl Braun]

Is it correct? For the most part, but there are certain factors that play a role in that. The Manitoba region had been working on those parcels for the previous nine years. That resulted in success in that one year.

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

We talked earlier about economic development and about a pipeline that crosses traditional lands. Maybe I'm wrong. I'm just kind of curious if this pipeline crosses treaty land reserve.

[The Chair, Conservative, Bruce Stanton]

Go ahead, Chief Nelson.

[Chief Terry Nelson]

The crown clearly undertook legal obligations. I'm a former police officer also, and I'm very clear in terms of what the Supreme Court of Canada has decided in regard to the duty to consult and accommodate. In fact, the indigenous peoples, having gone to the court in at least 12 different decisions on their duty to consult and accommodate, found that there is no enforcement mechanism on the treaty.

We are unable to go to the RCMP to ask that they enforce the Supreme Court of Canada decisions on the duty to consult and accommodate. Where do we apply to do that? The Canadian army? We can't go to the Canadian army and ask that they enforce this.

The treaties are very clear: “...and that they may know and be assured of what allowance they are to count upon and receive year by year from Her Majesty's bounty and benevolence”.

That is what the treaty said, that in fact the benefits from the 10.7 million acres of lands that Treaty One represents would in fact be due to us, and that in the future the crown would come.... You are the crown in this case, because you are members of Parliament. I'm therefore coming to you and saying, “How do we enforce the lawful obligations?”

[The Chair, Conservative, Bruce Stanton]

I recognize that Chief Hudson wants to add a comment too, although Mr. Clarke has only one minute left.

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

Can I please ask two more questions?

How many jobs have been created in regard to this pipeline, and how much money has the pipeline company or companies provided Treaty No. 1?

[Chief Terry Nelson]

Number one, the pipelines are not the crown. Essentially it is the crown's obligation under the treaty to come to the table and ensure that the permits they have granted to Enbridge and TransCanada to cross the lands are legal. That's what we are in court about; we are, in fact, in court on this issue. We're awaiting the court, and we certainly would appreciate it if the system were more relevant in terms of the timeframe. The fact that we, as indigenous people, have to take direct action is not our fault. It's 138 years later, and that's our position.

[The Chair, Conservative, Bruce Stanton]

Thank you, Chief Nelson. I appreciate, witnesses, that there are others who wish to comment here. We are getting a bit pressed for time here because we do have some committee business.

We have time for two more questions. We're going to go to Madam Crowder and then to Mr. Albrecht. Then we will have to finish up, unfortunately.

I'll do my best...and just keep in mind, gentlemen, that members have limited time both for questions and responses. If they're directing a specific question, it's difficult to give everybody time to respond.

We'll go to Madam Crowder for five minutes.

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

I'll make a couple of quick comments before my question.

We're starting to see a thread here. We heard from the Cree-Naskapi commissioners on Tuesday that one of the biggest impediments to getting things done is the bureaucracy, and we certainly see that in Manitoba, whether it's lack of management of files, lack of recognition of the responsibility around third party--it goes on and on.

The second piece of it is that there is a double standard in Canada, as you have rightly pointed out. The Cree-Naskapi commissioners pointed out that they were expected to go to referenda on all kinds of issues for which municipal governments and other levels of governments don't. And someone drew in the voting percentages. Municipal governments in Canada don't require a minimum percentage, and many of them have less than 20% in order to form governments.

I want to come to the additions to reserve under the treaty land entitlement. My understanding of this is that once you get through the TLE process, you then have to do an ATR process, so you could spend years in TLE and then years in ATR. As well, while you have a piece of land that's been settled under TLE you could end up paying municipal or other levels of taxes while you're waiting for the addition to reserve process to happen. Is that correct?

That's crazy.

Under the Saskatchewan process that somebody referenced, before somebody caught up to what they were doing, could they move the TLE right into the additions to reserve? Was there a quicker process in Saskatchewan?

[Chief Terry Nelson]

There's a bit that needs to be clarified. Treaty land entitlement is what the crown, in signing these agreements, has openly admitted in the agreements was the shortfall back in 1871. They also agreed in the case of Roseau River. The shortfall is 5,861 acres. They can go up to 16,218 acres under the addition to reserve process. So there are two separate issues that we're dealing with. The TLE, in our belief, says that this was a crown obligation in 1871. It should be reserve status the day we buy it. In fact, the normal transfers of title in the non-native situation would be three weeks.

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

I'm not clear, if there is a process that recognizes the TLE and grants whatever acres are involved under the TLE, a recognized obligation, why the additions to reserve couldn't be rolled into that process.

[Chief Terry Nelson]

That's an issue that the crown has to deal with. The first nations, the indigenous peoples, signed a treaty with the crown saying that this amount of land...and it was agreed to in 1871. It should be based on the honour of the crown; the crown should deal with that situation. It shouldn't be up to the first nations or indigenous peoples to go through a horrendous process to satisfy the crown. It is the crown that is getting the benefits from the 10.7 million acres of land.

[The Chair, Conservative, Bruce Stanton]

Thank you, Madam Crowder.

We'll go to Mr. Chief, but prior to him, Chief Fontaine wanted to get in as well. So if it's okay with you, we will proceed with Chief Fontaine and then go to Mr. Chief.

[Chief Donovan Fontaine, As an Individual]

Good morning, committee members. I am Chief Fontaine, Sagkeeng First Nation.

As you heard, Sagkeeng and Sandy Bay are two of the seven in Treaty One that aren't in the TLE process yet. However, in 2001, our submission was denied and sent back to us for fine-tuning.

Getting back to Mr. Lemay's comment about Treaty No. 1 and Treaty No. 2 being a model and a forerunner of subsequent treaties, what I'm going to say here is that they are kind of linked. There's a logical extension. That is what I'm saying.

On unextinguished lands, if you study Treaty No. 1, there were no blanket extinguishments of all the outside territories under Treaty No. 1. The one that was purportedly surrendered was reserve boundaries. We submitted a title claim in 2007 for aboriginal title on the unextinguished territories we've had. It goes to all this about crown land being crown land and being part of TLE. So it's all connected; the three are connected.

Sagkeeng is challenging this unextinguished title under Treaty No. 1 by virtue of the government not coming back to us and dealing with our community. I'm optimistic that Bill C-30 will help us. The Specific Claims Tribunal Act will hopefully not take us seven years down the road or eight years down the road. We're at the door now with the TLE process.

I came here as an observer.

I also wanted to briefly comment on the whole process of the tar sands and the pipelines going into our traditional territories. I want to say quickly that there's such a thing as dirty oil and there's also a human side to it. The human side, of course, is first nations. The treaties of 1871--territories, forestry, mining; we have yet to see one house come out of our traditional forests. It goes for anything else.

Thank you.

[The Chair, Conservative, Bruce Stanton]

We'll have a brief comment from Mr. Chief, and then we'll have to move on.