Indigenous and Northern Affairs Committee on Oct. 24th, 2023

[Shannin Metatawabin]

I think there's a balance. You just want an opportunity to be able to plan from it. If every society in all of the world can't be wealthy without land, then having no land for indigenous people to plan from is not really a fair thing.

Land is embedded in our culture. We are the land and we're the protectors of the land, but when there's poverty in our land, we want to be able to utilize the land and have a plan to utilize some of that land to benefit our community and future generations.

We're the stewards of that land. We were provided that. It's our generational wealth in the land, but we've been spectators as our generational wealth has been eroded. Our natural capital has been eroded, and everybody else gets prosperous from our lands. We're just asking for a share of that prosperity.

We will be able to manage that land. We'll be able to balance environmental stewardship and prosperity for our people.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Are there any numbers that you can show? Is there anything you can show us that says with some kind of certainty that, if we invest in these things, it will create growth? Are there numbers that back that up?

I'd really love to have that tabled for the final report of this, to show that when you invest in returning land to indigenous people—whether it's a municipality or whether it's key areas—economic growth comes with that and Canadians shouldn't be scared of it.

[The Chair, Liberal, John Aldag]

We'll need a brief answer. We're almost at the end of the six minutes, but I'll give you a chance to respond.

[Shannin Metatawabin]

If you're asking for a specific number, I'd say look at history.

I don't have any numbers for that, but you just have to look at history and the indicator of a half or three-quarters of all wealth being derived from the land. If we don't have any land, then we're never going to see that wealth.

There's definitely going to be an increase in wealth for the community if we're able to manage our own lands.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

If you do find any documents, please table them.

[Shannin Metatawabin]

I will. Also, I'm providing this national indigenous economic strategy with some great recommendations.

[The Chair, Liberal, John Aldag]

Thank you.

We go now to Madame Gill, who will have six minutes.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

I, too, want to thank Mr. Metatawabin and Mr. King for being here. We very much appreciate it.

Mr. King spoke about his work on the “Land Back” report, and I'd like him to provide more information.

Mr. King, you called the tools for land restitution inadequate, saying it may be time to try something else, such as a co-management regime or national land restitution centre.

Could you start by giving us a short critique of those inadequate tools? I know there's a lot to say, so perhaps you could focus on how the tools fail. Second, can you elaborate on some solutions?

If you don't have enough time, you can always get back to the committee with your comments, of course.

Thank you.

[Dr. Hayden King]

Yes, I can try to answer.

The additions to reserve policy, in particular, has been criticized pretty roundly at this committee. I think people take a lot of issue with the length that it takes to add fee-simple land to reserve status.

I think it's costly. I think there are the negotiations that have to take place with municipalities. First nations don't really like the idea of having to pay tax on their own land back to municipalities, when you do transfer land back to reserve status.

However, I think in principle there's also an issue that we're not really addressing, or very few people are addressing, and that's to transfer reserve land.... Let's say you have submitted a land claim and you have earned some restitution in the form of financial compensation. You take that money from your stolen land and you purchase land, and then you vest title in that land back to the federal government. The land that's been stolen from you, you've bought back, and then you turn around and give the title back to the federal government, who then transfers it to reserve status.

It seems like a very strange philosophy and approach to land back, where you finally have your land back and now you're giving it to the federal government to manage throughout this decade-long or two decade-long process, when you maybe have tax-free status and limited labour and environmental regulations on economic development initiatives, whether they're urban or rural-based. That doesn't seem to make a lot of sense to me. I think it may perhaps provoke some conversation about a different model of land tenure that indigenous people could hold that maybe is not just the fee simple model that requires taxes and is maybe not the reserve model that requires the transfer of title.

In all of the work that's been done over the past decade to revise the additions to reserve policy, I'm somewhat shocked that a different type of model hasn't been innovated that would allow indigenous people to maintain fee simple land ownership without the onerous taxation requirements.

Specific and comprehensive land claim processes have also been, at this committee, widely criticized. I think the specific land claims process requires first nations to subscribe to an often federal or provincial interpretation of historical treaties before they can even enter into a discussion of restitution.

I think it was in 2015 that the Liberal government proposed a national discussion on treaty implementation. That never came to pass, but it would be useful to have a conversation about what we actually mean by Treaty 3, Treaty 6, or Treaty 9. Why is there such an unwillingness to sit down and discuss what we actually mean when we say we're all treaty people? My interpretation of the treaty is different from your interpretation, and we have never crossed that Rubicon to figure out where the consensus is, if there is such a thing.

Instead we have to fight it out in specific and, of course, comprehensive land claim processes, and the latter are based on the principle of extinguishment. You can only enter into those processes if you agree to extinguish your title on the land or not assert your rights, to provide the federal government or provinces or territories with certainty. I think that's why the comprehensive claims process is grinding to such a halt over the last decade, since 2013.

What else did I mention? I noted the specific and comprehensive land claim agreements and the additions to reserve policy. They are inadequate.

[Marilène Gill, Bloc, Manicouagan, QC]

If I may, Mr. Chair, I'd like to ask Mr. King to send the committee more information on the proposals we didn't get to. We would really appreciate it.

Thank you.

[The Chair, Liberal, John Aldag]

Thank you.

Now we'll go to Ms. Idlout, who will have six minutes.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you very much, Chair.

I have a question for Mr. Hayden King.

I'm sorry I can't see you in person. I've been very proud of you and the work you've been doing.

The question I have is associated with the book you wrote in 2019. The organization you work for, the Yellowhead Institute, and that Red Paper impressed me.

If we're going to have our own government, we need to focus on our rights. Can you please elaborate on how we're going to use our rights to ATR, to land back?

[Dr. Hayden King]

Thank you for the kind words.

Aboriginal rights in this country are very limited and very narrow. Section 35 aboriginal rights afford us the ability to do what—to hunt, fish and gather? That is not the conception of rights that indigenous people had in mind when our ancestors agreed to share the land with Canadians. They are not the rights that we exercised prior to the establishment of this place—Canada—and, as I said, they provide very few avenues for us to express rights in any contemporary way. Courts have routinely frozen indigenous people in the past in terms of the expression of rights.

I think the one area where there is some innovation is title, in particular, the 2013 Tsilhqot'in case that vested a management interest, an economic interest, in jurisdictional potential among first nations that can prove title to their land.

I think that's an additional reason we see fewer communities moving through the comprehensive land claims processes. If the court recognizes that there's a managerial stake and interest in title lands, why would you go through a claims process that extinguishes those rights? You wouldn't. That's silly.

Instead, communities are starting to look to unique and novel models that are not connected to any federal policy or any federal legislation to begin animating aboriginal title in their own ways. I think the examples on the west coast with what the Haida are doing and what the Tsilhqot'in are doing really reflect an indigenous-led, indigenous-imagined approach to aboriginal title that isn't necessarily tied to section 35 aboriginal rights.

I think we often, as indigenous people, get caught up in this belief that we're bound by Canadian law and policy, but that's not necessarily the case. We have our own law. We have our own approaches to our relationship to the land, and we can assert and enforce jurisdiction on that land using those laws.

In fact, we're starting to see that Canadian law is providing maybe the shade or the contour to have a dialogue about where those laws meet. I think that was a really powerful element of the 2013 court decision.

The answer to your question is entirely on the side of indigenous people. It is up to indigenous people to enforce our interpretation of our rights in practice on the land. It's less about what a court decides or a government decides, in fact.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you for answering me clearly.

As first nations and indigenous people, if we're going to continue with this.... The people that I sit with on this, the lawmakers of all Canada, how can we...? How can we, as Inuit first nations, get...?

[English]

I'll explain it in English. I hope I don't lose my time. The interpreter wasn't grasping what I was trying to say.

[The Chair, Liberal, John Aldag]

Lori, go ahead and rephrase your question. We'll hear an answer and then we'll conclude this panel.

[Lori Idlout, NDP, Nunavut, NU]

Okay. Thank you.

I really appreciate your response, because this can't only be about giving space to indigenous peoples to ensure that we are implementing land back.

As parliamentarians, we see that there's the court case way, which doesn't always work. As you said, it gives us narrower rights. As parliamentarians, what can we do to better recognize the existence of indigenous peoples' rights to things like land back?

It's not just about economic development. It's not just about education. Land back is very much about asserting indigenous jurisdiction and reasserting those rights.

Do you have any recommendations that parliamentarians can consider as we're making laws that impact Canada, so that we could use these tools to implement a better way to ensure that land back is happening?

[Dr. Hayden King]

Thank you for the question.

It is remarkable to me how little time and space has been spent defining aboriginal rights through a legislative agenda. Aboriginal rights have only been defined by the courts. Courts have, by degrees, expanded the principle and concept of aboriginal rights after conflict between first nations, Métis or Inuit, and federal or provincial governments.

This narrow and limited conception of rights is, in some ways, maybe by design, because of an unwillingness by the federal government to actually articulate how it views aboriginal rights and what is included in aboriginal rights. If we were to write a list of the aboriginal rights, how many lawmakers could list three or four or five, or what aboriginal rights should be? That lack of dialogue on the conception of aboriginal rights is, as I said, somewhat remarkable. That discussion isn't really happening. Maybe it's happening in this committee. I don't know.

Now, it's potentially problematic for parliamentarians to pass a law that describes the scope and content of aboriginal rights without the discussion and consent of indigenous people, but why not have that conversation?

I think that word in particular, “consent”, is a useful one. As I said in my opening remarks, I feel that it is a conversation that is emerging and proliferating around the country. It is a tool that communities are increasingly using to insert and enforce their vision of land management, land restitution, self-government and self-determination.

Perhaps there's an avenue through which to pursue the work that has already been done by the federal government around the United Nation's declaration and implementation plan and to build on the concept of free, prior and informed consent. That would allow communities to decide for themselves, at a local level, and perhaps regional level, what land back means to them.

Those are two possible avenues for that.

[The Chair, Liberal, John Aldag]

Thank you.

Colleagues and witnesses, unfortunately that takes us to the end of our first round. We're going to suspend now so we can bring in our next panel. That will take a couple of minutes to do.

Mr. Metatawabin and Mr. King, thank you so much for being here today.

As you mentioned a couple of times, Mr. Metatawabin, you have a document to leave behind.

If you have anything further, Mr. King, that you'd like to send to us, we're in the final phase of our study. We're going to be moving into report writing soon, and we can accept up to an additional 10 pages of testimony.

We really appreciate your being here today and the insights you've shared.

With that, colleagues, we're suspended. We'll be back as quickly as we can.

[The Chair, Liberal, John Aldag]

Colleagues, we're back in session.

Just before we get started, we had another slight technical issue related to receiving and distributing a notice of motion from our colleague, Mr. Zimmer, so I have indicated I will give him....

He's going to read it out in English. It will be interpreted by our team. We're waiting for an official translated version, but there's an issue with the translation. We will get that circulated so that everybody has the bilingual one in hard copy, but the oral version is accepted for giving notice, so we'll get Mr. Zimmer to read out his notice.

Before I do that, I'll go to Madame Gill, who I guess might have a point of order.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

I want to flag that the interpreters didn't receive the French version.

[The Chair, Liberal, John Aldag]

That's why, if it's in English and presented orally—

[Marilène Gill, Bloc, Manicouagan, QC]

They told me that.

[The Chair, Liberal, John Aldag]

Verbal notice will be given, although we just received the proper version we were waiting for, so our clerk will distribute that to everybody right now, including the interpreters.

I'll call on Mr. Zimmer to read his motion, and then we'll get into hearing from our witnesses.

Madame Gill, does that work? You'll have it in a second.

Ms. Idlout, I'll go to you.

[Lori Idlout, NDP, Nunavut, NU]

Qujannamiik. Thank you, Chair.

Can we not discuss the motion at the next session after it's been given in both official languages? That way we're not taking time away from our witnesses.

[The Chair, Liberal, John Aldag]

Yes, procedurally, if it had been distributed in both languages before four o'clock it would be in order for the 48 hours' notice. As I said, there was a technical piece. That's why I'm trying to dispense with this very quickly so that we can get into the witnesses.

I'm going to go to Bob to read it out. It will be distributed to everyone, so you'll have it. Then, I'm going to move on to welcoming Ms. Bear, who's patiently waiting for us, and we'll get going with our opening statements and questions.

Mr. Zimmer, the floor is yours.