Boozhoo, wachiyeh, sekoh, shekoli, and good morning.
First of all, I'd like to acknowledge the traditional territory of the Mohawk people, Tyendinaga.
I am presenting here as the Ontario regional chief. I'd like to acknowledge the leadership that is with us here today, as well as the standing committee and the various parties that make up your committee.
Today's presentation to the parliamentary standing committee comes at a critical time in our relationship with the crown at both the federal and provincial levels. In some respects, the current work being done with both Ontario and Canada has been 167 years in the making. The lands and waters in what is now known as the province of Ontario are comprised of lands from pre- and post-Confederation treaties. These lands provided resources for European settlers to farm, fish, mine, and trade with our people.
The rich resources of our lands allowed for the future economic growth of what would later become the province of Ontario and the country of Canada. However, our peoples have never shared in that wealth. Far too many generations of our peoples have suffered in poverty and despair. Today that despair and dysfunction, created by such unilateral acts of Parliament as the Indian Act and by unilateral federal policies, continues to undermine our land base under treaty, inherent, and aboriginal rights.
In 1973 federal policy divided indigenous legal claims into two broad categories—comprehensive, known as modern treaties, and specific, which make claims based on pre-existing treaties or agreements. Comprehensive claims deal with aboriginal rights. These claims are based on traditional use and occupancy of lands by first nations, Métis, and Inuit who did not sign treaties. Historically the crown dominion, what is now known as the nation-state of Canada, entered into a number of treaties with indigenous peoples. These historical treaties cover much of Ontario.
Canada misunderstands both pre- and post-Confederation treaties as achieving consent regarding the first nations lands. RCAP states that Canada should in no way rely on any indigenous “surrender” of land if there was no clear evidence that indigenous peoples consented to that surrender. Treaties were made in the context of what is now seen as the fiduciary relationship between Canada and first nations. Where there is cession of aboriginal title, the crown must account for any unfair or improper benefit derived from appropriating aboriginal title without free, prior, and informed consent, or without making sure that the treaty nations were fully informed.
Clear evidence of surrender on informed consent should become the legal and political principle going forward. This is a mutual fact-finding exercise. Similarly, clear evidence of consent should be the go-forward principle for any alienation of indigenous peoples from their lands and territories. In fact, one could argue that it may already be established in the rule of law in Canada if section 35 is indeed a full box that includes the commitments made in the Treaty of Niagara of 1764.
If a regime will impact aboriginal titles, then such a regime must be consented to. Canada and the courts' implementation of section 35 has neglected the important crown and indigenous nation principles of fairness and equality within the relationship. First nations reject the justification test, as it allows for further denial of the premise that our rights deserve proper protection and respect in Canadian law. Canada must reject the justification test and hold our relationship to a higher standard.
The United Nations Declaration on the Rights of Indigenous Peoples commits nation-states to “take the appropriate measures, including legislative measures, to achieve the ends of this Declaration” in article 38. There are many ways that first nations would accept a new relationship with Canada in working together on creating the path forward towards a self-determined future. The political confederacy of Ontario submitted a presentation to the federal cabinet working group that is reviewing all laws, legislation, and policies that impact first nations. This document, entitled “Observing and Implementing the Sacred Obligations”, focuses on the fact that the treaty relationship between Canada and first nations strengthens our inherent rights as first peoples of this land.
The recipe for a new relationship with Canada includes the importance and significance that ceremony confirm the sovereign relationships; significant land base and resources to flourish; indigenous laws to regulate lands, resources, and relationships; adjusting Canadian federalism and constitutional-level discussions; observance of enforcement of treaties; and law and policy changes in adherence to UNDRIP, including all points above.
No amount of mandate letters or rhetoric about reconciliation or feel-good speeches at the UN will change the existing relationship. Restructuring of unilateral federal policies and the renewal of the nation-to-nation crown and first nation relationship, based on emerging realities around the nationhood goals of our member first nations and their respective territories and treaty affiliations, is the next step forward to true reconciliation.
After the Royal Proclamation of 1763, it was important to convene a treaty gathering of 120 or more tribes surrounding the Great Lakes in what was now considered to be British territory by the Europeans of the day. The 1764 Treaty of Niagara was an important historic gathering to comply with previous arranged indigenous protocols of peace and friendship.
We were informed of the royal proclamation in terms more generous than the common law rights that have been interpreted by the courts in the last 150 years. Your lawyers at the Department of Justice lead us to disbelieve that reconciliation is a true goal of your government by the manner that they interpret, observe, and negotiate treaty rights in Canada today. For example, the two row wampum informs us of the original understanding of “nation to nation”. The United Nations Declaration on the Rights of Indigenous Peoples and the Truth and Reconciliation Commission's recommendations to implement UNDRIP bring us back to the place in time when the Treaty of Niagara guaranteed a better relationship.
UNDRIP guarantees our right to use our traditional territories to build our own economies, in article 26, for example. In article 37, it promises that our treaty rights would be respected. Of course, a very important right is for our exclusive-use land base, now called Indian reserves.
Since there's been the now 140-year-old Indian Act, we have been treated as wards of the state. We are first nations. We are considered a second afterthought on government policy and priorities, and are treated as third-class citizens, some of whom live in fourth world conditions.
This is the state of the nation-to-nation relationship in 2017. We have children committing suicide due to poverty, despair, dysfunction, and abuse. We have a welfare-state system that renders far too many of our communities dependent upon funding that is inadequate and never shows up in time. The Specific Claims Tribunal leaves several gaps in the UNDRIP framework of rights recognition and mutual reconciliation of your laws, rights and title with our laws, and rights and title.
Continuing to have a cap on the compensation award in a specific claims process is not in the spirit of reconciliation. Returning of land is our ultimate goal, and the specific claims process should, as a priority, have the authority to return those lands to first nation communities. Within the process, itself, the amount of money for claims research is only a fraction of what should be made available to first nations. Overall, the SCP system does not provide the right of effective redress when our lands have been unlawfully taken from us, as per UNDRIP article 28. Canada should be facilitating changes in the very near future, or this government will fail to meet the expectations of first nations, given the nice words and commitments of the Trudeau government.
How do we restart the relationship? The solutions are there. The 1996 Report of the Royal Commission on Aboriginal Peoples is still the benchmark that has all the solutions, which boil down to self-government and a sufficient land base for economic self-sufficiency.
The Ontario 2007 Ipperwash report practically repeats many of the same RCAP recommendations on settling land claims. Let me quote from the final report:
...the single biggest source of frustration, distrust, and ill-feeling among Aboriginal people in Ontario is our failure to deal in a just and expeditious way with breaches of treaty and other legal obligations to First Nations. If the governments of Ontario and Canada want to avoid future confrontations like Ipperwash or Caledonia, they will have to deal with land and treaty claims effectively and fairly.... Unfortunately, the land and treaty claims processes developed and applied by the federal and provincial governments since the mid-1970s have been largely ineffective, painfully slow, and unfair. They also lack accountability and transparency.
While Canada claims progress on the resolution of specific claims, there's been a simultaneous and sustained effort to curtail research capacity at the first nation level. At one time, in the 1980s and 1990s, first nation PTOs administered research funding to support local capacity to carry out research to resolve specific claims.
Successive governments, beginning with the program review process in the 1990s, have significantly reduced the amount of available funding to PTOs. By some estimates, available funding has diminished by up to 75% of the levels they were funded at during the 1990s. Restoring community-based funding, administered through PTOs to assist those communities without the capacity to administer themselves, is a fundamental requirement in seeking justice for past grievances.
In renewing the fiscal relationship, it will also enable indigenous people to have fair and ongoing access to their lands, territories, and resources to support their traditional economies, and to share in the wealth generated from those lands and resources as part of the broader Canadian economy.
A fair fiscal relationship with indigenous nations can be achieved through a number of mechanisms, such as new tax arrangements, new approaches to calculating fiscal transfers, and negotiating resource revenue sharing agreements.
Once we gain a sufficient land base, and once we gain back control of our communities through self-governance and self-sustaining economies, then we will finally become equals. Only then will we secure our rightful place in Canada.
I am open to questions. Thank you.
