Indigenous and Northern Affairs Committee on Sept. 28th, 2017

[Chief Martin Dufour, Chief, Band Council, Essipit Innu First Nation]

My name is Martin Dufour, and I am the Chief of the Essipit Innu First Nation. Joining me is Marc Chaloult, Coordinator, Treaty and Public Affairs, at Essipit.

Thank you very much for the invitation.

The Essipit Innu First Nation was invited to appear before the House of Commons Standing Committee on Indigenous and Northern Affairs to share our experience with specific claims and comprehensive land claims. I accepted the invitation on behalf the Essipit Innu, but only to address the question of specific claims.

We also submitted a brief relating the experience of the Essipit lnnu with the specific claims process, including comments and recommendations. Today, we will summerize the points raised in that brief, after which we will be happy to answer your questions.

As of today, the nation has two active claims filed with the federal government: the insufficient allocation of land when the reserve was established in 1892 and the unlawful surrender of the Chemin du Quai in 1904.

Let us begin with the claim pertaining to the establishment of the reserve.

The small size of the reserve and the fact that we are enclosed in the municipality of Les Escoumins have always been major issues for my community. In the 1980s, we launched an expansion project, and it was then that we learned that the situation should have been very different.

[Marc Chaloult, Coordinator, Treaty and Public Affairs, Essipit Innu First Nation]

Based on the documents we obtained, we can see that our community had been deprived of more than half of our rightful reserve lands for more than 100 years, during which time we could have had better access to the St. Lawrence River. The historical situation is clear and well documented.

In 1881, Canada agreed in writing to acquire approximately 230 acres of land for the establishment of a reserve for our community, but only 97 acres were ever acquired. Moreover, our research revealed that the 97 acres of land acquired by Canada in 1892 were never given legal reserve status. This latest discovery gave Canada the leeway it needed to resolve a controversial situation in the 1890s involving a road crossing our reserve to get to a wharf under federal jurisdiction.

In 1903, the Mayor of Les Escoumins took steps to build a road that crossed the reserve to get to a new federal wharf. Everyone believed that the land had Indian reserve status when proceedings for the surrender of land pursuant to the Indian Act were initiated. However, we believe that the surrender was not carried out in compliance with applicable legal and fiduciary obligations.

While we were in the process of expanding our reserve, Canada demanded in writing that we resolve the issue of the Chemin du Quai before it would confirm official reserve status and, ultimately, authorize the expansion project. Therefore, we had to concede the Chemin du Quai, located at the centre of our reserve, and cleave our community in two. We were finally granted reserve status, but excluding the Chemin du Quai. It is easy to see why this pressure and unlawful surrender constitute our second claim, for which we have not yet received compensation.

Let us return to our first specific claim, filed in 1994 with the Canadian government, regarding the insufficient allocation of land. Ten years later, in 2004, Canada denied our specific claim. Its position, reiterated in 2012, was to deny everything. The stage was set for a lengthy legal dispute, first before the Indian Specific Claims Commission, and ultimately the Specific Claims Tribunal.

On January 30, 2017, the Specific Claims Tribunal rendered a decision finding that Canada had failed to fulfill its fiduciary obligation and that its actions did not respect the honour of the Crown. The tribunal recognized that Canada acted wrongfully when it acquired 97 acres of land after having agreed to acquire 230 acres for the establishment of the Essipit reserve.

Twenty-four years of disputes and legal proceedings were required to obtain recognition of wrongdoing that seemed to us most obvious. Ten years passed between the time the claim was filed and Canada's initial response in 2004.

In addition to considerable delays in the review of claims filed with the Specific Claims Branch, we can only conclude that proceedings before the Specific Claims Tribunal are equally long and difficult. Instead of attempting to simplify and streamline the process, Canada added to the burden by systematically denying any potentially prejudicial material, thereby requiring the submission of thousands of documents.

Fortunately, Canada has not submitted an application for the judicial review of the decision rendered in our case, as it has in several other cases in which it was deemed liable by the tribunal.

The battle is not yet won, however, as we must now discuss the matter of compensation with Canada, a process that is currently underway.

[Chief Martin Dufour]

As we mentioned earlier, we were amazed to read the response to our claim provided by the Specific Claims Branch in 2004, and even more so the second time in 2012. The arguments raised by the Crown were meaningless and offensive.

We were equally dismayed to hear the federal government's claims at the hearing. In addition to displaying a total lack of open-mindedness, the federal government once again denied any possible misconduct with regard to the Essipit Innu. Although we had already heard a few of Canada's arguments, they were still difficult to hear.

For no other reason than to deny liability, Canada invoked any and all arguments capable of winning the case, to the detriment of its fiduciary relationship with first nations and its obligation to act honourably. For instance, Canada argued that the Essipit Innu should have asked for more land if they wanted it and that they could have benefited from the Betsiamites reserve established in 1861, about 105 kilometres away from our current reserve.

[Marc Chaloult]

Canada even went so far as to contradict the Supreme Court's teachings by negating its fiduciary obligations and the obligation to act with honour. The tribunal, however, set the matter straight by stating that just because the Crown had dealt with a third party rather than setting aside public lands owned by the Crown or acquiring them from the provincial Crown, its fiduciary duty to our community did not diminish. The tribunal has also recognized the duty of the Crown to act with honour towards the Essipiunnuat.

[Chief Martin Dufour]

In short, on this point, although the tribunal ruled in our favour, we are still bitter about the way the federal government has acted. As a result, we feel that reconciliation is compromised because of Canada’s disconcerting positions.

[Marc Chaloult]

In terms of the compensation to be determined as a result of the tribunal's decision, we wish to address another argument raised by Canada, which is particularly disappointing. For the federal government, the fact that we added land to our reserve in 1998 makes up for the default and stops the accumulation of damages. According to Canada, the area of 0.4 square kilometres that we added in 1998 can make up for the 133 acres that have been missing since the creation process. It makes no sense to believe that all the damages and losses are erased by this addition.

[Chief Martin Dufour]

It is clear to us that, if we had had these lands as early as 1892, our development, our projects and our evolution would have been different. Acquiring these lands today does not change the past, and we are shocked that Canada is using this pretext to reduce the amount of compensation. The federal government is simply acting as an insurer: it wants to do everything it can to pay as little as possible.

[Marc Chaloult]

We also want to address the issue of funding today.

Although funding was provided under the specific claims policy, we were faced with a significant decrease in funding when we needed funding the most in preparation for the trial. In June 2016, three months before the hearing, we received one-third of the amount that we deemed necessary. Between the two hearings on responsibility, we had to make an additional request for funds, having quickly exhausted all the money allocated. Again this year, while Canada's responsibility is recognized and we are starting the second part of the litigation requiring a number of expert opinions, the federal government cut almost $60,000 from our request of $208,000. In addition to these challenges specific to the Essipiunnuat, to which we can testify, we have some general remarks and recommendations to make today.

First, we believe that the government's rigid process of processing specific claims can no longer co-exist with the reconciliation principles currently advocated by the federal government. These findings were actually the subject of a statement by Minister Bennett and Minister Wilson-Raybould at the beginning of September.

We deplore the fact that this monetary compensation should not be simply calculated through a standard mathematical formula as Canada claims. Any loss of profit, loss of opportunity, collateral damage, profits obtained from third parties or the Crown as a result of the default should be taken into account in the calculation of financial compensation. Damages as a result of the failure to establish the boundaries of our lands, as well as the absence of clear titles and official status, should also be part of the compensation, especially for all the frustration and aggravation experienced by the community because of these territorial ambiguities. Sticking strictly to legal principles does not do justice to the spiritual and cultural importance we attach to our lands.

[Chief Martin Dufour]

Once an agreement has been reached with one of the First Nations or a tribunal has ruled on Canada's responsibility, what does Canada do to apologize for the harm it has caused or for paying a drastically reduced amount of the money it negotiated?

It does nothing.

[Marc Chaloult]

The reparation is not comprehensive, and there's the rub. The narrow scope of the specific claims policy and the Specific Claims Tribunal Act does not provide for any form of compensation other than money. There is no provision for a rehabilitating remedy, no apologies, no regrets or even doubts, let alone a guarantee that such mistakes will not happen again. There is nothing to heal the wounds and to rectify the injustice.

The honourable thing to do would be to include in the regulations and orders of the tribunal measures to recognize and right past wrongs. For example, making a public apology, formally acknowledging the obligations to indigenous peoples, publicizing and publicly explaining settlement agreements are measures that Canada could adopt to further make amends.

It should also be noted that the tribunal cannot order exemplary or punitive damages, or damages for cultural or spiritual losses. The tribunal has no power to sanction or punish the Crown's mismanagement, which it has recognized in our case. How is the guilty party punished? In no way whatsoever. The tribunal simply orders it to give back what it has taken, without any deterrent.

The lack of specific remedies for the collateral damage that may have been caused through Canada's fault in our dealings with third parties is another flaw in the current process. For example, the Crown's shortcomings have resulted in contentious relations between the municipality of Les Escoumins, its residents and our community, and we are still feeling the effects today.

Territorial disputes have created a climate of animosity between the members of the community and the people of Les Escoumins, as well as between the municipality and the council of the nation, leaving historical marks. Why not support the community with intercommunity projects toward joint infrastructure or bicultural affirmation, or by creating a joint development fund? A number of avenues are possible.

[Chief Martin Dufour]

To sum up, we have never chosen to share such a relationship with the federal government. We have no choice but to rely on and trust the government.

Do we have a single guarantee that such a mistake will not happen again today? You can guess the answer.

The main change we want is a change in attitude. Instead of addressing specific claims in an adversarial context where Canada first seeks to limit its responsibility, we want to see an approach consistent with the unique and ongoing relationship between our nations. The approach being used right now is incompatible with the desired reconciliation.

Let me conclude with an example. You give your house keys to a neighbour who then steals a number of things in your absence. A court simply asks the neighbour to return the stolen property, which he does. However, that court asks you to give the keys to the neighbour again, since he proved to be trustworthy by returning the stolen goods. Would you?

Tshinashkumitinau.

[The Chair, Liberal, MaryAnn Mihychuk]

Very good. We understand.

The first round of questioning is led by MP Amos.

[William Amos, Liberal, Pontiac, QC]

I would first like to thank you for your very specific testimony, which has enabled us to know more about the history. That's very helpful.

Last summer, I was able to benefit from the services in your community. I visited your community with my young family. The wharf on the river, which serves as the infrastructure for your tourist information centre, provides a simply outstanding guided tour. I would like to tell my colleagues that a visit is well worthwhile. The scenery was amazing. I'm not sure about his last name, but Julien Darchal, I believe—

[Chief Martin Dufour]

It's Julien Marchal.

[William Amos, Liberal, Pontiac, QC]

He's truly a wonderful guide, who spoke highly of the professionalism of the tourism organization of the Innu Essipit. Congratulations. The experience is well worth it. You can see what can happen when there are investments and economic opportunities for indigenous people, but let's set that aside.

I'm really interested in your comments about the financial formula. In my riding of Pontiac, where the Algonquin nation has submitted its specific claims for a long time, I often hear the comments of Chief Jean-Guy Whiteduck regarding the much-touted 80/20 formula. You also listed other aspects that are of interest to you not only in calculating the compensation, but also in terms of non-monetary elements that should be incorporated.

This may make you uncomfortable, but could you elaborate on the issues that came up between the municipality, the people of Les Escoumins and your community? How has this lack of potential non-monetary compensation worsened the situation? How could this process improve relations if it were redesigned to bring reconciliation to the community?

[Chief Martin Dufour]

I must say that, right now, the relationship is improving, because we decided to talk to each other. We told ourselves that there may be financial means to help us set up joint projects. We did not wait for the government. Right away, we started to set up joint projects. We started with small projects between $5,000 and $6,000. We bought an ice resurfacer, for example. We started to build a climate of trust and to really tell people the truth.

We would also like the federal government to tell the truth and to explain some things to the Canadians and Quebeckers around us. It can explain the problem that arose when the reserve was created and that, instead of obtaining one square kilometre of territory, we received 0.4 square kilometres. Why were we surrounded by a fence with barbed wire and why was a barrier placed at the entrance? We were put in there like cattle. We were told to grow potatoes, when we were hunters and fishers, and we should have had access to the river to be able to fish salmon. Those issues all led to the salmon war in the 1980s, when we had to assert ourselves and say that we had a right to that resource. That's what we did. Things weren't rosy. I was very young at the time. Shots were fired.

We bought a first outfitter in the 1980s. Our neighbours said that the Innu would empty the lakes and kill the moose in the area. We were the first ones to hire fish and wildlife conservation technicians to count the number of fish that had to be taken from some lakes. We bought a second outfitter. Now we have five outfitters. This helps create jobs for our people and develop a sense of pride in the community.

At the time, it seemed that the people from the surrounding municipalities were a little jealous that we, the Innu, were successful. Instead of feeling sorry for ourselves, we decided to take our destiny into our own hands. We have not stopped since. You came to see the mistamek, the big fish or whales. We have a whale watching company, we have continued to develop commercial fisheries, and so on.

I can tell you that, if the federal government, or any government, provided funding for joint projects with the surrounding municipalities of certain First Nations, it would go a long way to reconciling the peoples.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Kevin Waugh.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Thank you.

I'll speak in English. Thank you for your presentation. A lot of resentment has built up over the years. I can hear it in both your voices here this morning.

When you started your negotiations you were promised more land. You only got 97 acres. You should have had 230. What information did you receive, or did you, from Indigenous and Northern Affairs Canada when the decision was made concerning the negotiation of your specific claim?

[Chief Martin Dufour]

As an explanation, we were told that it was within the rules, that we should have asked for more and that our reserve should have never been created, since the Innu of the Haute-Côte-Nord should have gone to the Betsiamites reserve that was established in 1861. That reserve is now called Pessamit. At the end of the day, we should have been deported, sort of like the Acadians were to Louisiana.

[Marc Chaloult]

I want to put this in context. This was a so-called reserve, because it wasn't recognized as a reserve, although it was federal land. It must be said, and it is mentioned in our brief but not in this presentation, that to repair the situation, instead of adding some acres to the 97 to make up for the 230, the government asked for a diminution in the amount of money they had paid to the person who had just swindled them. They got swindled and we got swindled at the same time.

That was one of the explanations. When we came back with that notion, they said we should have asked for more land. Here we are. We have some families who are being taken from one area and brought into—let's face it—a swamp. They used to live in Pointe-à-la-Croix, a nice place, and were transferred into a swamp. They are not allowed to get out of there. I remember when we were questioning the people, they said they're not even allowed to go outside the fences for raspberries and blueberries because it's not theirs.

A few decades later, they're still there. They were asked repeatedly to go to Pessamit, where they should all be. The government attempted to get all the Innus into Pessamit, which is a deportation. However, it didn't work. Every time they brought the Innus to Pessamit, about 150 or 110 kilometres from our reserve, the Innus went back to their original lands.

We stayed there and what developed is what I call a war mentality. There were four specific wars because of the situation where you're sitting on 0.4 square kilometres. One was the salmon war, which Martin mentioned. Then there was another one when we asked for another 0.4 kilometres. That was a war. It was settled with two-by-fours. It was not a nice situation. Then there was the unemployment insurance war, because we were accused of hiring people. That was not recognized by the judges, by the way. More recently, there was what we call the “yellow sign” war where it was postered all over the place in Les Escoumins. That's when I came in as a crisis manager in 2004. We were in the middle of a crisis. It was said there would be no negotiating with the Innus; they would never be given territory.

This is the context. We're saying to the people outside the reserve, it's as if we were asking for more than we deserve or more than should be given, which is not a fact. If things had been explained to them, such as we were swindled from the beginning. From the beginning, the municipality had 240 square kilometres. We have 0.8, and we had to fight for the extra 0.4.

That's what we mean when we say relations had been broken based on false assessments that we were just asking for too much. We were told we couldn't ask for all that because we already had enough. No, and that has poisoned the relations.

Let's be honest, Les Escoumins council has managed, with new generations, to bring back peace where we are embarking on partnerships. We are trying to work with them, but our argument here is that this should be one of the aspects of retribution in the sense of helping us mend this situation. Let's put some money and effort into working together with the communities around us.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

As the House of Commons Standing Committee on Indigenous and Northern Affairs, these are the stories we need to hear. This is probably the best we've heard in three days, to be honest with you. You were blunt, you told the story, and I thank both of you.

I don't know how you go forward. Perhaps talk about that, because there is so much damage that has been done in the past. I don't know how you move forward with this, or do you move forward?

[The Chair, Liberal, MaryAnn Mihychuk]

You have about 30 seconds.

[Chief Martin Dufour]

As I said earlier, we have taken our destiny into our own hands and we now look to the future instead of the past.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Yes, you're the new generation. Thank you.

But your elders, talk about them, because they have history on this file.

[Marc Chaloult]

There are wounds to be mended.