Thank you, Mr. Chairman.
[Witness speaks in his native language]
I want to thank you for being here so that we have an opportunity to speak to your committee. You invited us to appear. As others have said today, you're in our homeland, and you're welcome here.
I want to support the people who made presentations and who are part of our nation, the Dene Nation. We heard from many of them this morning. You have key people here to help explain the reality that exists here in a legal context, because this is all legal.
I have beside me Elder Francois Paulette, who chairs the Dene Nation Elders Council. I'll make reference to him and other leaders, who on our behalf in the early seventies went to court to challenge Canada's claim to our homeland here. Francois Paulette was the leading chief of the time, and we have two more of those chiefs who are still alive. We have Elder Daniel Sonfrere on the Hay River Reserve—and we'll hear from Chief Roy Fabian a little later today—and also Chief Charlie Barnaby, who is still alive. Those are the three people who we still have alive from that time. We heard from Chief Sangris a little earlier; his father also represented us from this area.
It has to be clear that we are direct descendants of people who entered into the legal instruments with Great Britain on behalf of your people, on behalf of your subjects. We are not subjects of the crown. We are part of what are called “Indian Nations”. The royal proclamation that your king endorsed in 1763 made it very clear that in order to come into our territory you had to enter into treaties with us.
Those treaties in 1899 and 1900 were made to gain access to the Yukon, which people referred to this morning. The gold rush was taking place in the Yukon. Many people were coming through this territory. They were interfering with us, so the crown was compelled at that time to enter into an agreement with us. Later, in 1921, the next treaty, Treaty No. 11, the last numbered treaty, happened because oil was discovered down the Mackenzie River in the Sahtu territory, so a treaty was made again in 1921 to have legal access into that territory.
We found out in the fifties and sixties that Canada in fact believed they owned our land, so we got ourselves organized. Our organization in the early days was called the Indian Brotherhood of the Northwest Territories. I have evidence here that I'll provide to you, which includes our constitution, bylaws, and other documents.
We organized ourselves. We went to court to challenge Canada's assertion over our lands, and Justice William Morrow came up with his decision.
What he did was very remarkable for that time, because rather than asking people to come to Yellowknife from all of our 30-odd communities, he went into our communities, our settlements, and our villages, and he spoke to people who were still alive and had been present at treaty time. There were interpreters and there were chiefs, and this included people on both sides, because Canada still had people alive who were there at treaty time.
He heard all the evidence and concluded that our people are the prima facie owners of the land, so we are the landowners, as Chief Norwegian just stated. That has never been contested in court.
So whatever happens here is very, very important. You're attempting to pass legislation on lands that belong to Indians who you have no legal authority over.
There's one question I want to pose to you, Mr. Chairman. Your legal obligation as a parliamentarian is to have authority over whatever it is you propose to legislate, so please provide to us the legal authority and boundaries that you have to pass legislation in our territory. That's one question we'd like to present to you. I don't know if you do that, or if indeed the Prime Minister does that, or the Governor General, but we would like to see that, because nowhere will you find it on paper that you have the authority. We'd be very interested to see it.
I could go on to a large extent here, but I want to tell you that I have copies of the Paulette case. I don't have copies of the Frank Calder case, which proved that the Nisga'a also had title, but as a parliamentarian you could find that easily in your government library.
It's significant because prior to that—I believe all of the people here at the table remember 1973, when the judgments were made—we were told that we didn't have anything called “treaty” rights or “aboriginal” rights. If there was such a thing, it was either legislated away or it was extinguished at treaty time.
So when these judgments came down, we were very pleased. It was 41 years ago. We thought at that time that we would be able to exercise this right that is clearly inherent. It doesn't come from Canada. It doesn't come from Great Britain. It has always been here. We've been here for at least 30,000 years.
Today we find ourselves in this predicament that is, as Chief Norwegian says, very awkward. Indeed it is.
I have been the elected leader of the Dene since 1987, and I've had the privilege, Mr. Chairman, to be involved in discussions like this and to sign agreements on behalf of our people. I will present to you—contrary to what we heard this morning from some of the witnesses—that we indeed signed an agreement in principle. On behalf of the Dene, I signed. On behalf of the Métis, Mike Paulette signed, and on behalf of Canada, Prime Minister Mulroney signed. The territorial government didn't have an official signature. As you know, they are an administrative arm of the federal government. They were there as witnesses but not as sub-signatories. We then did sign a final agreement in April 1990.
So we do have a final agreement that was signed. This first document was signed in Behchoko, commonly called Rae-Edzo. This document was signed in N'Dilo in 1990. It was signed by the federal government, ourselves, and the Métis, with the territorial government again as witnesses.
There was a final agreement in April of that year, and by November, in this very room that we're meeting in, Canada met with us and walked away from the table. When people say the agreement failed, it's because Canada walked away from the table. They then unilaterally imposed a whole new way of dealing with our people. Rather than all of our 30 communities, they changed their policy, which at that time was to deal with all of our people. They began to deal with regions.
We have five regions, and they vary in size—some as few as four communities, and others as large as 11. In 1992, as you heard this morning, the Gwich'in came up with their agreement, which we've always supported. It's constitutionally entrenched. It's subject to treaties 8 and 11, which are the foundation of the fabric of the country up here.
The Sahtu came up with their agreement—signed, endorsed, constitutionally entrenched—in 1993.
The Tlicho, as we heard, are now in their ninth year of governance. They have 39,000 square miles of land that they outright own and legislate with legislative authority. Someone now is trying to change that.
So we have a huge issue that we need to deal with.
I don't want to take all the time because I want to have Elder Paulette also make some comments because it's paramount that he does.
The point I want to make, Mr. Chairman, is that the consent of the Dene Indians is required. If you look at treaties 8 and 11, which we will give you copies of, it was very clear that Queen Victoria for the first treaty, and King George V for the next treaty, came up to acquire our consent. Justice Morrow made it very clear that we did not surrender. We were never defeated in war. We never relinquished our rights. Our treaties were instruments of peace and friendship, international instruments. They go all the way up to the Arctic Ocean, which in law means 200 miles out into the Arctic Ocean. So you begin to get into it.
Treaty 11 also goes into the Yukon, so what happens in the Yukon is subject to Treaty 11. The present day Nunavut Treaty 11 goes to Coppermine. It encompasses Coppermine, Paulatuk, Inuvik, Sachs Harbour, Tuktoyaktuk—where they want to build that new road—and so on. That is all Treaty 11 territory. These instruments cannot be denied. They're valid. We need to talk about what the future's going to compel us to deal with.
In my conclusion, Mr. Chairman, I want to support what Mr. Bevington said, who's a resident of the Northwest Territories, who grew up with us and married among us. His grandchildren play hockey with our grandchildren. He talked about the fact that we have always talked about our future. I'll also provide you with a report that Commissioner Jim Bourque provided to people of the north in the early nineties, which talked about options for constitutional development. We've had very in-depth discussions. We've always been regarded as people who would determine their own futures, not someone from the outside.
Finally, I want to make reference to two letters, one that I sent to Justice Beverley McLachlin, the Right Honourable Chief Justice of Canada in the Supreme Court, which I sent on October 25, 2012, because of our deep concerns as to what was being proposed in devolution and other developments in Canada. What I outlined to Justice McLachlin were some of the things that I mentioned today, but I made specific reference to the courts, because in a parliamentary democracy, which you are part of, we have our own government on this side. The parliamentary democracy that you are a part of has a separate institution called the judicial fabric, which you have to follow. It has to be enforced. You make the laws and the executive arm tries to enact them. If they don't enact them properly, and someone challenges it and they win the court case, then things have to change.
The problem is that things have not changed according to the ruling, so we made reference to Supreme Court judgments. For example, Chief Justice Lamer of the Supreme Court of Canada, on the aboriginal right to self-government, said, “the Crown is under a moral, if not a legal, duty to enter into and conduct [self-government negotiations with first nations] in good faith.”
Per Justice Wilson of the Supreme Court of Canada on the aboriginal right to self-government:
Shared sovereignty, in our view, is a hallmark of the Canadian federation and a central feature of the three-cornered relations that link Aboriginal governments, provincial governments and the federal government. These governments are sovereign within their respective spheres and hold their powers by virtue of their constitutional status rather than by delegation.
In other words, no one delegated authority to us. We are here in our own standing and sovereignty.
Per Justice Binnie of the Supreme Court of Canada on the aboriginal right to self-government:
What is significant is that the Royal Commission itself sees aboriginal peoples as full participants with non-aboriginal peoples in a shared Canadian sovereignty. Aboriginal peoples do not stand in opposition to, nor are they subjugated by, Canadian sovereignty. They are part of it.
We are very fortunate, Mr. Chairman, to have people like George Erasmus, who lives in this community and is still alive, and who chaired this commission. I suggest you speak to him and ask him what the Supreme Court meant when their report came out in the early 1990s when Canada spent over $60 million on the subject we're talking about today.
Also, per Justice Wilson of the Supreme Court of Canada and Justice Dussault of the Quebec Court of Appeal, who was the co-chair of the Royal Commission on Aboriginal Peoples with George Erasmus, on the treaty right to self-government, after noting “the essential link between the right and power of a people to govern themselves and the act of treaty making”, they wrote that the “implicit treaty right of governance has not been recognized” and that the time was right for Canadians and their governments to recognize the inherent right of aboriginal peoples to self-government and to make room in the Canadian federation for its exercise.
The Royal Commission found that the spirit and intent of the treaties required the crown to respect the inherent right of the treaty nations to govern their own affairs and territories. It has also confirmed that in entering into nation-to-nation treaties with first nations, the crown has already acknowledged their self-governing nation status.
Finally, per Justice Wilson of the Supreme Court of Canada and Justice Dussault of the Quebec Court of Appeal on the treaty rights of self government:
[The first nations of Canada] have waited steadfastly for implementation of their treaty rights.... It is the Crown that has marginalized the treaties to the point where questioning their validity—clearly as a last resort—might become an option....
If the validity of the historical treaties—or certain key components of them, including the extinguishment clauses—were placed before the courts, key aspects of many portions of the written texts might be set aside.
If this occurs that would result in a crown having to negotiate the historical treaties from scratch.
Mr. Chairman, it's clear that what you're doing is in question. You are here under section 91 powers. The provinces have section 92 powers. We have section 35 powers under the Canadian Constitution. We ensured that happened in 1982. Our people went to England. We had Lord Denning render a judgment saying that if the constitution indeed comes to Canada, you have to act as if you were England. In other words, you have to honour the treaties.
Mr. Chairman, with that I thank you. We will present you with some of our documents. There's a table of contents. I won't read them out because of the lack of time, but they are provided for you.
Thank you for this opportunity. Mahsi cho.