[Witness speaks in Mohawk]
I'm Chief Donald Maracle of the Mohawks of the Bay of Quinte. I've been the elected chief for 24 years in our community.
The Mohawks of the Bay of Quinte are part of the Mohawk nation within the Six Nations Iroquois Confederacy. We are one of the Six Nations communities politically associated with the Iroquois Caucus and a member first nation of the Association of Iroquois and Allied Indians.
The Tyendinaga Mohawk Territory is located along the shores of the beautiful Bay of Quinte. We are approximately 20 kilometres east of this venue today. Our current membership as of August 31 is 9,775 members. We have an on-reserve population of 2,175. This does not take into account the number of non-registered people living in our community who are part of our members' families.
Our community has the third-largest membership in indigenous communities in Ontario and the 10th largest in Canada. We are currently in negotiations with Canada on the Culbertson Tract claim of 923.4 acres. This claim has attempted to be negotiated in the past. We've taken Canada to court for a judicial review in regard to not negotiating in good faith and being open to negotiating under all aspects of the specific claims policy.
We are recently back at the table with hopes of settling a portion of this claim, 300 acres. We are now seeing some creative activity in the thinking at the table, but there are still constraints.
In the past we've had to request a judicial review in order to have Canada not only negotiate in good faith, but also follow all aspects of their policy. The position of only monetary compensation and not land is an infringement on our rights. Under the Simcoe Deed, Treaty No. 3½, our treaty states:
And that in case any Person or Persons other than the said Chiefs Warriors Women and People of the said Six Nations shall under pretence of any such Title as aforesaid presume to possess or occupy the said District or Territory or any part or parcel thereof that it shall and may be lawful for Us our Heirs and Successors at any time hereafter to enter upon [those] Lands so occupied and possessed by any other Person or Persons other than the said Chiefs Warriors Women and People of the said Six Nations and them the said Intruders thereof and therefrom wholly to dispossess and evict and to resume the same to Ourselves Our Heirs and Successors.
This means that the crown or its heirs has the fiduciary duty to dispossess trespassers from our land. These treaty provisions embody the special relationship between the Mohawks and the British crown as military allies that cannot be forgotten by subsequent layers of legislation and policy. Today I brought the photograph of one of those historic allies, Mohawk military captain Joseph Brant and the Mohawk captain Deseronto.
The Mohawks of the Bay of Quinte's experience with this specific claims policy is that Canada's negotiators tend to turn a blind eye to the land compensation component of the policy. Canada's negotiators instead follow an unwritten policy of monetary compensation only, and then advise the first nations that they can use the settlement monies to purchase the lands on a “willing seller, willing buyer” basis. Rather than recognize the fiduciary role to the treaty provisions of protecting the land, the crown has instead followed a course toward extinguishment of aboriginal title. The establishment of a tribunal to address monetary compensation only further ignores the treaty relationship that exists between our community and Canada. The only mandate we have from our community in negotiating one is to have the land returned to our growing community and to seek compensation for loss of use.
On the monetary compensation, the $150-million limit, if negotiations fail, we end up at the tribunal. We would have no choice but to accept monetary compensation. Monetary compensation is set at a maximum of $150 million at the tribunal level. This is a combination of the current market value compensation and loss-of-use compensation. No amount of money can entice us to surrender our land. Money does not address the crown's responsibilities to our treaty, nor will it address the growing need for restoration of land for the generations to come.
Given the fact that our community has less than 20% of its treaty land left, with approximately 75 acres under potential claim, it is doubtful that our claims will fit into the process, especially when taking into account third party developments on the claim areas.
The requirement that first nations surrender all interests in or rights to the land resources upon the settlement of a claim is preposterous. This clause is also an infringement on our treaty rights under the specific Simcoe Deed, Treaty No 3½, which outlines how the lands are to be disposed of. It reads:
Provided always nevertheless that if at any time the said Chiefs Warriors Women and People of the said Six Nations should be inclined to dispose of and Surrender their Use and Interest in the said District or Territory, the same shall be purchased only for Us in Our Name at some Public Meeting or Assembly of the Chiefs Warriors and People of the said Six Nations to be held for that purpose by the Governor Lieutenant Governor or Person Administering Our Government in Our Province of Upper Canada.
This is very similar to the provisions of the Royal Proclamation of 1763, which set the foundation for recognizing and addressing aboriginal title and interest in lands. This is part of Canada's Constitution.
Why should our people be expected to extinguish our title interests in lands so third parties can remain on the land? We did not surrender it in the first place. Perhaps Canada deems it easier to dispossess our people rather than third parties that have been given flawed title to our lands by the crown. An original injustice cannot be corrected by creating another injustice. Why does Canada fail to recognize first nation title interests in the land?
Through government-fuelled propaganda, the media often portrays first nation claims as flimsy alleged claims rather than legitimate outstanding legal grievances based on aboriginal treaty breaches by the crown. It would go a long way if Canada were to stand up and say, “We are negotiating because this particular first nation has outstanding title interests that can no longer be ignored.”
In order to have reconciliation, the crown must admit the mistakes of its predecessors and take responsibility for past mistakes. Extinguishing aboriginal title and treaty rights through federal policies does not set a proper tone for reconciliation.
Canada's position has been that it has no land to offer for the settlement of claims, yet Canada is able to purchase land when needed under other circumstances. Canada has powers of expropriation, as well as the ability to purchase land; however, Canada, through the Department of Justice and the Department of Indigenous and Northern Affairs, chooses not to utilize these powers and abilities to settle first nation claims.
Canada's position is that first nations can use the compensation money to purchase the lands on a willing seller, willing buyer basis. The purchased land can then be applied for as an addition to reserve. It is unreasonable to expect our community to buy its own treaty lands back when the treaty outlines that it's Canada's responsibility to correct the breach by removing the third parties from our land.
Under the addition-to-reserve policy, Indian and Northern Affairs bureaucrats decide whether the land purchased by a first nation can be added to the reserve or not. This policy deals with Indian land as a mere policy issue, rather than recognizing the constitutionally protected aboriginal and treaty rights of aboriginal peoples.
Our community has many claims that will be submitted to the federal government and Ontario for resolution in the near future; however, we cannot submit any of our claims into a process that continues to ignore aboriginal and treaty rights or requires our extinguishment of title.
I must reiterate that our mandate is to negotiate for the return and control of the lands and to discuss loss-of-use compensation for the time that we have been without the use of the land and the benefit of the land. We do not have a mandate to discuss extinguishment of our rights to lands that are needed now and will be needed in generations to come.
Thank you.