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Evidence of meeting #72 for Indigenous and Northern Affairs in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was land.
Evidence of meeting #72 for Indigenous and Northern Affairs in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was land.
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
Mr. Lake, can we have your thoughts on your situation? You've never received treaty land. That's been unique this week, your situation.
September 29th, 2017 / 10:10 a.m.
Legal Counsel, Missanabie Cree First Nation
I think it is unique, at least in the context of Treaty No. 9. I think as we look more closely, we learn more about the post-Dominion Lands Act treaties that went into place across the Prairies, and we find all kinds of instances in which bands of Indians—which is a very loose definition, involving an artificial construct nine times out of 10—had forced amalgamations. The loss of identity and the loss of the independence to govern one's own band happened all over the place. So it is prospectively not that unique.
Liberal
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Meegwetch.
[Member speaks in Cree]
Those were words of thanks to all three of you.
In the third compliance order that was delivered by the Canadian Human Rights Tribunal, I think it's paragraph 74 where the tribunal says that the minister, in this case the ministers, those of Health and Indigenous Affairs, say one thing and the departments continue to do exactly the opposite. We're continuing to live under that, and that point was raised by Chief Day and Chief Hill. It's continuing as we speak today.
One thing you said, Chief Hill, struck me and it reminded me of what Senator Sinclair said a couple of months ago. He said that it took us 150 years to get into this mess and it's going to take 150 years to fix it. The present government jumped on that statement to say that he's right it is going to take time, and that's perhaps why there's a lot more talk than action on these issues. You also said this will take time.
We're all aware that it's going to take time, but does that prevent us from taking those initial fundamental steps that will take us on that path of reconciliation and nation to nation? Case in point, I'm proposing for instance that in this country we adopt a legislative framework using the United Nations Declaration on the Rights of Indigenous Peoples.
Can that be our first fundamental step in the right direction in this country? That question is also for Chief Maracle.
Chief, Six Nations of the Grand River
I think it can. I know of and appreciate the efforts you've been doing personally in your own private member's bill on the declaration. I think that Six Nations has already come out and supported you when you first started this so it can be one step. On this whole path of reconciliation, and referencing the fact that it is Orange Shirt Day and we're having our own orange shirt session tomorrow with our residential school survivors, I need to thank those residential school survivors for having the courage to step forward and tell the truth to the commissioners. Now that that's there, we're on the reconciliation. It's up to each and everyone of us, all of you as MPs, up to you as individuals, to ask what reconciliation means to you and what am I going to do to ensure there is reconciliation for the people.
It is because of those residential school survivors that the political agenda in this country now has our issues at the forefront. I listen to Your Morning every morning on CTV News. They're talking about the missing and murdered indigenous women's inquiry and they're talking about bad water in New Brunswick. Our issues are now front and centre, and we have to thank those survivors for doing that. As I said in my presentation, we also have to work together in partnership to move forward in reconciliation. We have to quit sitting here pointing fingers and blaming each other saying: you didn't do this, you didn't do that. Now is the time to move forward. We can't let those residential school survivors down, and we have to move forward for the future generations who are looking to us to do that.
Phil and I have have been working on this for a long time, and we're ready to move on to other things. We have to give hope and inspiration to our young people, and we have to do that by being responsible adults, parliamentarians, and leaders. We have to do what's right. We have to do what's right for our people. We've suffered an injustice over here for so many years, hundreds of years, and now we are on the path. We should support anything that is going to lead us on to that path of reconciliation, including implementing the UN Declaration on the Rights of Indigenous Peoples.
Chief, Band No. 38, Mohawks of the Bay of Quinte
You mentioned passing specific legislation. I think that's only going to delay justice. I think what is required is simply for the cabinet to give direction to the minister of Indian affairs to clarify this policy. I reference Canada's specific claims policy and I think there was a document called “Outstanding Business” in 1992, a specific claims policy. That's 25 years ago. It was reiterated again in 2007. We shouldn't have 25 years pass with a lack of clarity or instruction on what this policy means.
There is nowhere, when I read it...:
Where a claimant band can establish that certain...lands were never lawfully surrendered, or otherwise taken under the legal authority...the bands shall be compensated either by the return of the lands or...the current, unimproved value of the lands.
It doesn't say in there that Canada can't buy land. Therefore, all the cabinet has to say is that there is one mechanism of settlement, so that Canada can purchase land and give those instructions to your negotiator. What's happened is that the negotiator is mired in these age-old policies. There's no senior direction from government, so we just spin our wheels in the same rut. It requires some leadership and it requires the cabinet to give instructions to the minister to tell her staff that Canada can buy lands. If it's cabinet direction, I'm sure the other central agencies of government can figure out what they need to do, but there needs to be strong central direction on how this is going to be administered and right now it's not there. I think it's simple clarity on the policies and some instructions, so your negotiator who comes to me knows that he has the authority for that.
The other thing is that normally what's done in the department is that it is operated on the basis of delegated authority. Give full authority to the minister of Indian affairs. If the government expects her to report on settlement claims, give the minister the authority to do that and give her a budget to do it.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Very quickly, Mr. Lake, you mentioned that the capped $150 million was too low and inconsistent with case law. Can you provide this committee with which cases you were referring to?
Legal Counsel, Missanabie Cree First Nation
Sure. Actually, this has much to do with Chief Maracle's observations at the Specific Claims Tribunal. Now that the 80-20 method, which was an internal method used by Canada to justify its settlement numbers, has been discredited and equitable compensation principles, which are generally available to every other facet of the law, are moving into the specific claims realm, many of these claims, which were previously valued at $100 million, are now worth $200 million, or $150 million claims are now worth $250 million. By that abstraction alone, I think that's a good rationale.
Liberal
The Chair Liberal MaryAnn Mihychuk
That's quite short and concise. That's good. Thank you.
We're now moving to MP Amos.
Liberal
William Amos Liberal Pontiac, QC
Meegwetch, Chief Maracle, to you and to your Tyendinaga Mohawk people, for having us. It's appreciated.
I just want to say, on the record, that I find that all talk and no action is disingenuous and not conducive to reconciliation. I'm hearing a lot of great, very critical, but still constructive, commentary. The idea that there is no action being undertaken by the present government does not hold water and I just don't think that it's helpful, so I just want to put that on the record. It's too partisan.
To bring us to the case that Chief Maracle mentioned, I want to mention the decision by Justice Rennie. Thanks to my colleague, Mr. Bossio, I had the opportunity yesterday to read that decision and it was edifying. It really does go to the heart of what our specific claims discussion should be about. Is this the right process at all? Is this going to achieve reconciliation?
We're in a different place than we were in 2007. We've had some interesting points made around the 80-20 rule, which is now being reviewed by the government, and the openness to a more equitable compensation and equitable remedy approach. We've heard quite clearly the idea that Chief Hill presented that you want to be accommodated and that accommodation is much larger than just the lump sum of money. You've also made that point that it's not about the money, but it's about land.
If not 80-20, what is it? What does more equitable compensation actually look like? How should that be framed? Stepping back further, do you think that a Specific Claims Tribunal approach, which does involve negotiation, but also a degree of conflict inherent in it, is the right approach, as we move toward reconciliation?
Chief, Band No. 38, Mohawks of the Bay of Quinte
As I've stated, in regard to the termination of title, the crown is in breach of its own treaty obligations under Treaty No. 3 1/2 when they expect that the only way to resolve it is the termination of rights under title. The crown has an ongoing and continued obligation to respect that as a title to that land, and that's what the crown wants to avoid—the recognition of what the treaty means.
If you ask their negotiator or anybody sitting on the federal table, “How does Canada interpret its obligations under this treaty?”, they avoid the question. We're telling the crown today that there is an ongoing legal obligation to respect the title rights that are conveyed under that treaty. It cannot be overridden by policy or other legislation. The treaty is supposed to be the superior law of the land, to uphold and respect those treaty rights. The government has politically said they're going to do it. UNDRIP said they should be doing it. So why do we have these policies that are in total contravention to those obligations?
We are reasonable people. We will accommodate non-native people on our land under some other arrangement, but not under extinguishment of our title or our rights. There is plenty of room for other models to emerge, but Canada is not open-minded enough to look at something new. They have surrender on the brain, and that's what has to stop.
Liberal
William Amos Liberal Pontiac, QC
I won't say any more. I'll just invite the other two witnesses to speak to this.
Chief, Six Nations of the Grand River
I'll take one minute.
In my presentation I mentioned that Six Nations have made a number of interventions at the UN Permanent Forum on Indigenous Issues. At one of those interventions we did come up with a proposed solution. We've already said we don't agree with the specific claims process. It's useless to us basically. What we recommended, and I'll just read from the report, is the following:
There need to be the options to go to neutral dispute resolution tribunals to resolve legal disagreements....The neutral tribunal will have the authority to make binding decisions on the validity of issues, compensation criteria and innovative means for resolving issues. We call upon UNPFII to establish an international tribunal to oversee resolutions to these issues. Progress on these negotiations shall be reported directly to the UN Permanent Forum on Indigenous Issues and the Parliament of Canada through a special joint Six Nations / Parliamentary Committee.
That's how we would see it.
With respect as well to the accommodation, in our global solution you'll see that we're not looking at any kind of.... Our global solution is that we get into a unique process with Six Nations, because our claims are so huge. When you read the booklet, you'll find out it's in the trillions. If we said we want all this money, it would bankrupt the country. What we're looking at is a global solution whereby we can talk about fiscal relationship directly between Six Nations and the Government of Canada on an annual basis, with escalators every year, so that we can look after our own people; we can look after the health, the education, the housing, and all of that.
There are other options, and this is one of them. There are others, and we're willing to sit down.... That's why we said we want to go into the negotiation rooms, not the courtrooms, to discuss those options.
Legal Counsel, Missanabie Cree First Nation
I'll add my two cents to that.
I think absolutely negotiation is better in terms of having an opportunity to work with the community on a nation-to-nation basis as opposed to being caught up in an adversarial system.
That said, we've seen that in a negotiation process, when it's controlled by one of the parties who is the defendant and the judge, the results have been skewed to the effect that the vast majority of claims don't find resolution. So I think it is important that there is a tribunal there that we have recourse to, and where we're not bogged down by technical defences and things like that. We can have a referee step in who understands first nations issues, constitutional issues, issues of significance.
In terms of the 80-20 method and how you go about resolving these claims, from a quantum perspective, from a monetary perspective, that memorandum I provided to you on the Beardy's decision details the way that the court is viewing the applications for equitable compensation. In that instance, it was 100% compound interest using the band trust fund rates through time. So that works.
Chief, Band No. 38, Mohawks of the Bay of Quinte
[Inaudible—Editor]
Legal Counsel, Missanabie Cree First Nation
Well, it's actually 100% compounded interest on the band trust fund rate.
Liberal
The Chair Liberal MaryAnn Mihychuk
I hate to break it at that point, talking about compound interest, but I must.
We have another panel coming up, and we will not adjourn. We have no time; it is to start in one minute.
I sincerely thank all of you for coming out to your own territory and allowing us here.
Yes, Chief?
Chief, Band No. 38, Mohawks of the Bay of Quinte
I have one very important point that I'd like the committee members to hear.
Chief, Band No. 38, Mohawks of the Bay of Quinte
Yes, to all members, if they could just hear this one point.
When the utility companies went to Indian affairs, and asked for permission to put the utilities on our claim area or through the reserve, oftentimes Indian affairs gave it to them for $1, or $10, or something like that, in perpetuity. That obstructs our community from getting fair compensation for the use of our traditional land that is now going to be under claim. Canada is going to have to come good for that, because it was done without the consultation of our chief and council.
Chief, Band No. 38, Mohawks of the Bay of Quinte
Look at all these instruments and how cheaply those companies were allowed to use our land, and to make millions of dollars while our people didn't even get a penny.
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you.
Please remember to submit further documents by October 20.
We will suspend for a few minutes.
Liberal
The Chair Liberal MaryAnn Mihychuk
Welcome back. I understand we have a panellist who has another commitment. There is some urgency to getting things going. Hopefully, we can resume and members will be back very quickly.
I want to welcome you to the traditional territory of the Mohawk people.
This is our fourth stop in a cross-country tour. We have Yellowknife after this. We could find no hotel room available in Yellowknife, because it's that season when the northern lights are most active.
I've been fairly lenient in deciding how you want to present. I don't know if you've decided between yourselves who is going first, but you each have 10 minutes to present. I understand we have two groups.