Thank you very much.
As I indicated earlier, I will circulate my opening statement afterwards.
I'm hear to speak about my perspective and experience as a lawyer advocating for the recognition and implementation of aboriginal and treaty rights across the country and to offer some comments about the substance of a framework that gives teeth to the principles enunciated in UNDRIP.
To start, I believe the government's efforts to conclude a framework with new legislation and policy that enshrines the implementation of rights as the basis for all relations between first nations and the federal government is a critical step forward. Equally critical will be the contributions of first nation governments and their citizens to the development of any framework.
As we know, the recognition and implementation of aboriginal and treaty rights is the centrepiece of reconciliation. Section 35 of the Constitution Act recognizes and affirms these rights, but the substance of these rights has been left flapping in the winds of the courts. Very little has been done by Canadian governments in collaboration with their first nations' counterparts to implement any unifying and purposive recognition of these rights.
This failure allows historical injustices to compound. The recognition and implementation of a rights framework may provide the necessary protections of indigenous rights and ensure the promotion and realization of reconciliation.
I've looked at the articles and I've identified some related systemic challenges that I think will be addressed by the framework and that would achieve or lead to the achievement of harmonizing the laws of Canada with UNDRIP. This is just to give us some practical examples. Article 26 details indigenous peoples' rights to their lands, the development of their lands, and state protection of these lands. Article 28 provides that indigenous people have the right to redress by means that can include restitution, or when this is not possible, a just, fair, and equitable compensation for the lands and resources.
These articles are relevant to the long, ongoing effort to resolve hundreds of specific claims across the country. I previously provided a paper to a different iteration of this panel, titled “Exploring Access to Justice through Canada's Specific Claims Process”. That paper reviews features of the specific claims process that have emerged over the last 40-plus years, features of dispute resolution that have been employed to reconcile the relationships between the parties arising from these centuries' old, unresolved claims. It provides a detailed analysis and commentary on the dispute resolution process as it is today.
The desired outcome is central to the issue of redress. This begins with an unabashed legislative promotion of reconciliation among first nations, the crown, and non-indigenous populations and the resolution of these historical injustices.
Obstacles that currently exist, which may be resolved through legislated harmony with articles of UNDRIP include, for example, the elimination of the specific claims cap, which would allow for a fair and equitable redress to spill on to the specialized tribunal for the Specific Claims Tribunal.
The $150-million cap that currently exists is too low in light of development in the case law. It means that a lot of straightforward, historical grievances involving unlawful takings of land and treaty land entitlement now fall outside of the benefits of the tribunal process. By restricting claimants under the policy and before the tribunal to $150 million, you are, in effect, obstructing access to justice for countless first nations whose claims are now forced to enter the judicial process, which is filled with other challenges.
This brings us to our next obstacle, which I think flies in the face of the UNDRIP articles. These are the technical defences that are universally used by the crown in the superior courts. As we know, until 1951, first nations weren't able to retain legal counsel. Today, in every single piece of litigation before the superior courts you will find the crown defending on the basis of limitation periods, which of course, in effect, extinguish aboriginal and treaty rights by virtue of their operation. Limitation statutes should be amended to address section 35 cases. Arguably, UNDRIP principles could be a road map to justifying that.
My simple recommendation in this regard is to amend the legislation either to recognize the way you have it in the tribunal process that those limitations have no effect, or to amend them in another way that allows for a reasonable time period for first nations to file their claims. The idea that statutory limitation periods enacted by federal and provincial governments can bar reports to the courts is contradictory to the guarantee and entrenchment of aboriginal and treaty rights in section 35.
I'm going to jump to article 37 of UNDRIP, “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors”.
The natural resource transfer agreement executed in 1930 transferred to Saskatchewan and two other prairie provinces, I believe, all minerals, lands, and natural resources, subject to certain conditions. One such condition was for the province to provide unoccupied crown lands to fulfill any treaty land entitlement obligations that remained left over vis-à-vis the treaties or that still existed vis-à-vis the treaties.
In 1992, in one of these provinces, the provincial and federal governments and 25 first nations signed the Saskatchewan Treaty Land Entitlement Framework Agreement. It established the framework to address outstanding TLE obligations. Part of that agreement was a path to implementing that obligation under the NRTA for those first nations that never received their entitlements or their full entitlements under treaty.
Today many of the signatories have still not been able to acquire these crown lands because the province is—for whatever reason, largely political—refusing to follow the provisions of this agreement, taking a narrow and restrictive interpretation. For example, Saskatchewan has frustrated its constitutional obligations, along with the Government of Canada, and they continue to fail to implement the terms of the treaty.
Still, while that's happening, we've had no resounding results from the courts. Saskatchewan continues a rolling online public auction of crown lands to private third parties without any notification or recognition of their commitments under the terms of the TLEFA. This matter has forced dozens of first nations into the court system, where technical defences and exhaustive procedural tactics have left the Saskatchewan first nations with no resolution to date.
Finally, there is article eight and the right not to be subject to forced assimilation or destruction of culture. We consistently work with Indian bands that were historically forcibly amalgamated with other bands or have never received recognition as an Indian band under the act, even though the minister can, with her discretion, do so at any time, and/or have not received all their entitlements that they're entitled to under the terms of the treaty.
That's my opening statement.