Thank you, Madam Chair.
Once again, my name is Morgan Chapman. I'm here for the second time, this time representing one of our client groups, the Lesser Slave Lake Indian Regional Council treaty and aboriginal rights research program.
Today I want to speak to you about reconciliation and the fact that the process, as it stands today, cannot take place under the framework of the current specific claims process. I would also like to acknowledge that we are on the unceded Algonquin territory.
To start, first nations receiving specific claims research services from the Lesser Slave Lake Indian Regional Council treaty and aboriginal rights research program are all signatories to Treaty No. 8. Despite the recognition and affirmation of this treaty in the Canadian Constitution, central provisions, such as the protection of the traditional aboriginal mode of life, are ineligible for submission as a specific claim. The Specific Claims Tribunal Act, in paragraph 15(1)(g), states, “A First Nation may not file with the Tribunal a claim that...is based on treaty rights related to activities of an ongoing and variable nature, such as harvesting rights.”
We respectfully ask that the Standing Committee on Indigenous and Northern Affairs help resolve this serious inconsistency in order to achieve Canada's reconciliation goals.
As a point of departure, it's important to note the critical distinction between specific and comprehensive claims. Canada defines a “specific claim” as addressing
past grievances of First Nations related to Canada's obligations under historic treaties or the way it managed First Nations' funds or other assets. To honour its obligations, Canada negotiates settlements with the First Nation and (where applicable) provincial and/or territorial governments.
In other words, specific claims are those that identify outstanding breaches of Canada's specific lawful obligations to first nations. By contrast, comprehensive claims, also known as modern-day treaties, address general claims to aboriginal title not previously settled by treaty.
In order to understand the relevance of the issues at hand, one must understand the context under which Treaty No. 8 was agreed with by our member nations.
The crown intended to acquire land in British-occupied territories in North America, but the Royal Proclamation of 1763, which recognized aboriginal title, obligated it to negotiate treaties with indigenous peoples in order to open the land for settlement. Consequently, the government negotiated a series of treaties with various first nations as settlement advanced westward.
Treaty No. 8, as its sequence among the numbered treaties indicates, came near the end of this process, because the northern territory it encompassed was initially not considered as valuable as those covered by the preceding prairie treaties. However, the government's understanding of the territories' value changed abruptly in 1896 with geological surveys and the discovery of gold in the Yukon Territory, resulting in a growing recognition of the need for a treaty.
In the summer of 1898, while Ottawa developed plans to hold treaty negotiations the following spring, the first nations of the region became increasingly angry over the influx of miners. As the Ottawa Citizen reported:
There are 500 Indians camped at Fort St. John who refuse to let police and miners go further north until a treaty has been signed with them. They claim that some of their horses have been taken by the miners and are also afraid that the advent of so many men into their country will drive away the fur; hence their desire to stop the travel north.
As Indian Commissioner Forget noted at the time: “no time should be lost in notifying the Indians of the intention of the Government to treat with them next Spring”. Consequently, a treaty commission was sent to negotiate Treaty No. 8, which was signed on June 21, 1899.
The commissioners, in their report following negotiations on Treaty No. 8, recounted the importance of assuring the nations that their traditional modes of life would be respected:
Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they [had] never entered into it ... the Indians were generally averse to being placed on reserves. It would have been impossible to have made a treaty if we had not assured them that there was no intention of confining them to reserves. We had to very clearly explain to them that the provisions for reserves and allotments of land were made for their protection, and to secure to them in perpetuity a fair portion of the land ceded, in the event of settlement advancing.
Further assurances, such as those made by Father Lacombe, special adviser to the commission in 1899, were used to entice first nations into signing the treaty: “Your forest and river life will not be changed by the Treaty, and you will have your annuities, as well, year by year, as long as the sun shines and the earth remains. Therefore I finish my speaking by saying, Accept!”
These promises were also recounted in an affidavit signed by a witness to the negotiations, known locally as Peace River Jim, describing the promises and assurances that were given:
It was only after the Royal Commission had recognized that the demands of the Indians were legitimate, and had solemnly promised that such demands would be granted by the Crown, also, after the Hudson's Bay Company Officials and Free Traders, and the Missionaries, with their Bishops, who had the full confidence of the Indians, had given their word that they could rely fully on the promises made in the name of QUEEN VICTORIA, that the Indians accepted and signed the Treaty, which was to last as long as the grass grew, the river ran, and the sun shone—to an Indian this means FOREVER.
Despite the assurances of the crown's representatives that their traditional economy and mode of life would be protected, almost immediately after the signing of the treaty laws began to be passed restricting the signatory nations' rights to hunt, fish, and trap. Thus, the main intentions driving the first nations' decision to sign Treaty No. 8, and consequently the main solemn promises of the crown, were violated.
First nation signatories recognized and understood the rights provided for within Treaty No. 8. In April 1900, Chief Kinosayoo and his councillors, who represented five of our seven member nations, formally asked Canada to uphold its provisions. Specifically, they requested the surveying of reserves, provision of agricultural implements and ammunition and twine, and other promises, such as education of their membership, and 117 years later, in the fall of 2017, Canada finalized negotiated specific claim settlements with a number of Treaty No. 8 first nations regarding provision of those agricultural benefits.
It should be noted that while this one provision has been settled, the specific claims process has not even begun to address the real issue at the heart of Treaty No. 8, which is the signatories' right to their traditional mode of life. This is because, again, under the Specific Claims Tribunal Act, these rights have been deemed ineligible for submission as a specific claim.
This was not always the case. In 1982's “Outstanding Business: A Native Claims Policy”, under “Specific Claims”, such breaches were eligible for research, submission, negotiation, and resolution. Despite “Outstanding Business” providing more opportunities for first nations to address outstanding legal obligations against the crown, the process was deeply flawed, and a 2006 Senate report entitled “Negotiation or Confrontation: It's Canada's Choice” called once again for an independent tribunal process. This eventually led to the Specific Claims Tribunal Act in 2008.
The act was a step forward in terms of providing an independent adjudication process through the tribunal, but a step backward in eliminating the ability of first nations to deal with the historical breach by the crown of its most important lawful obligation under their treaty.
As a direct result, the federal government's recent stated objectives regarding reconciliation through the specific claims process cannot be fully achieved. The courts have recognized that the treaties represent a solemn and sacred promise between Canada and the signatory nations, and until our nations have a mechanism to address and resolve Canada's outstanding legal obligations, reconciliation, in the complete sense of the word, is simply unattainable.
We respectfully request that the Standing Committee on Indigenous and Northern Affairs evaluate the act and make recommendations to amend it to address the elimination of paragraph 15(1)(g). To achieve reconciliation and preserve the honour of the crown, treaty first nations must be able to seek redress for outstanding legal obligations of the crown by addressing all solemn and sacred promises made under the treaty, not just some of them.
We obviously welcome questions today. I have provided our contact information in the brief, which we are hoping to submit by end of day tomorrow. It will also include our director's contact information, in case there is anything we can't address today.