I guess I should give a little background first. Obviously, Chief Gauthier sends his regrets. Being the leader of a first nations government, he has many demands placed upon him every day, in the same way that I'm sure you do, honourable members.
The Missanabie Cree First Nation is party to Treaty No. 9, but it never received any reserve land despite repeated requests following the treaty commission's visit to what is today known as Missanabie station, sort of in the hinterland of northern Ontario, north of Wawa. As a landless band, Canada has admitted in litigation at the Superior Court that it has an outstanding obligation to perform the sacred Treaty No. 9 promise to provide the Missanabie Cree First Nation with a reserve. This failure to fulfill its constitutional and treaty obligations in a reasonable and timely manner constitutes a breach of treaty fiduciary duty and the honour of the crown, which of course is always at stake when dealing with first nations.
In addition to its entitlement to reserve land, the Missanabie Cree also seek equitable compensation for the extensive damage and irreparable harm caused by the mass displacement of the Missanabie Cree from their traditional territory, and countless social impacts suffered by generations of Missanabie Cree for more than 110 years. Of course, having said that Canada acknowledges this lawful obligation, it probably perplexes many people why this is still a claim caught up in the system, but I will get to that in a moment. I'm just going to continue with another little summary here about Treaty No. 9 and Missanabie.
Prior to Treaty No. 9, treaties were negotiated and entered into solely between the federal government and the Indians. However, in 1894, Ontario and Canada signed a formal agreement, ratified by imperial statute, which stated:
that any future treaties with the Indians in respect of territory in Ontario to which they have not before the passing of the said statutes surrendered their claim aforesaid, shall be deemed to require the concurrence of the government of Ontario
In effect, when the treaty commissioners were out making Treaty No. 9, Ontario was a party to that treaty and effectively, through the terms of that treaty, carried significant veto power over the allocation of reserve lands to first nations. Of course, that factors substantially into the Missanabie Cree's claim, because much of the reason, as far as we can tell, why they never received their reserve was due to the economic interests of the Province of Ontario for its benefit alone and to the exclusion of the Missanabie Cree.
A final point on that is that Treaty No. 9 was radically different in that it was drafted by lawyers for the Government of Canada and the Province of Ontario without the involvement, input, or consent of the Indian bands whose aboriginal title was to be extinguished by its terms. The treaty was engrossed on parchment paper by the crown—not different than many of the cellphone agreements you and I enter into on a regular basis—and the treaty commissioner set out in 1905 and 1906 and signed adhesions with some, obviously not all, of the bands of Indians occupying the vast territory covered by Treaty No. 9, an area comprising 90,000 square miles of land rich in gold, minerals, timber, and other natural resources.
It's often said that with the first signature to that treaty, to that parchment paper, first nations had fulfilled their aspect of the treaty obligation, which was in effect the cession of aboriginal title to all of that land. Of course, in exchange for that are the solemn and sacred promises that are obviously enshrined in Treaty No. 9, many, if not all of which, have either been only partially fulfilled or not fulfilled at all.
Now popping over in my presentation, more substantively, I have some observations I will briefly discuss with this committee in relation to the specific claims process. My commentary and recommendations would have substantial influence over the resolution of the Missanabie Cree's treaty land entitlement claim. That said, I must add that because this claim, which I am counsel to, is in advanced stages of a negotiated resolution, I'll not be directly commenting on that claim. I would also like to take a moment and provide the committee with two documents, which I have provided to my friend over there already, which underpin much of what I will briefly discuss this morning. I've been told I should also pass on my notes. My notes are somewhat useful and, hopefully, I'll clean them up before I send them to you.
The first document was prepared by my principal, Ron Maurice, and it's titled “Recent Developments in the Law of Equitable Compensation”. This material describes the recent decision of the Specific Claims Tribunal respecting 13 first nations specific claims arising from the crown's non-payment of treaty annuities in the aftermath of the Riel Rebellion.
This decision has dramatic ramifications for the crown's risk assessment, and the global value of specific claims making their way through the specific claims process.
That's basically a case summary, a very important one, detailing what the tribunal has found in terms of equitable compensation and what it means. For all practical purposes, basically it's a specialized tribunal that has recognized that the basic principles of equitable compensation that apply in the context of common law writ large outside of the specific claims process do apply to first nations, and that indeed the result of that is a significant impact to the global value of these historical losses when they're compounded through time.
The second document was prepared by me, and it's titled “Exploring Access to Justice through Canada's Specific Claims Process”. This 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 first nations and Canada arising from centuries-old specific claims; a detailed analysis and commentary on the dispute resolution process as it is today; and a commentary on whether the current iteration is capable of addressing the desired outcome.
Then there's some analysis of the stats and the outcomes that are present in the process. Most of that is drive-by audits from your government in the last year, and submissions to the five-year review of the Specific Claims Tribunal Act, which was conducted by the chair of that tribunal, Justice Slade.
I will start there, the desired outcome. Central to the resolution of specific claims is the promotion of reconciliation between first nations, the crown, and non-indigenous populations in Canada. Chief Justice Dickson observed that the relationship between the crown and first nations is trust-like rather than adversarial. This unique relationship informs the challenges and distinctive nature of the specific claims process.
The first important but simple observation that I'll touch on briefly today—and I heard some people talking about it over breakfast—pertains to the cap, the cap placed upon specific claims and more broadly the general accessibility of justice in the context of specific claims under the policy and at the tribunal.
I have two minutes left. I better pick this up.
I'm just going to read this straight through. I'll ask for an indulgence as I complete what is maybe another five minutes. I see he's refusing the indulgence.