Good afternoon, everyone. I would like to welcome you to the 24th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.
Today we will be continuing with our hearings regarding Bill .
We have a very full house here today, so welcome to all of you, both our large number of witnesses as well as those in the room today. I only point that out because there are actually people at home watching this on television and they can't see that part of the room to know that we have a full house here today.
We have the Iroquois caucus here today, and we will begin with six presentations from this group, limited to 10 minutes each. We have two hours, so we need to be done at 5:30. I'm going to restrict those presentations to 10 minutes, and I would ask for your cooperation in that regard. I'll give you a one-minute warning. When you start your presentation, at one point I will just say, “one minute left”, and that gives you an idea of your time so you can wrap it up. I only ask that because following those six presentations, which will take a little over an hour, we will have a round of questioning, and I know that many of the committee members would like to have the opportunity to ask questions. Depending on how long it takes us to get to that point, we'll adjust to determine whether we have time for one round of questioning or whether we have time for possibly two rounds. We'll cross that bridge when we come to it.
First, we are going to get a presentation from Chief Bill Montour on behalf of the entire group. There are 10 minutes for that presentation. Following that, we'll have a second presentation from the Six Nations of the Grand River, which will also be given by Chief Montour.
I will give you 10 minutes, and if you finish your first presentation before that, then I'll just make that point and we'll carry on to the second one as well. With that, welcome, Chief Montour. You have 10 minutes.
Thank you, Mr. Chair and honourable members of the Standing Committee on Aboriginal Affairs. Sekon, skano
Before I start, I would like to acknowledge that Grand Chief Steven Bonspille from Kanesatake is with the witnesses. He didn't get a chance to get his name on the list. I just wanted to make that point.
My colleague chiefs have asked me to make this statement on behalf of the caucus.
In prehistoric times, the Iroquois formed a confederacy to assure peace, unity, and cooperation among five nations. We are referred to as the Five Nations Confederacy and then the Six Nations or the Iroquois Confederacy.
Our original homelands stretch from the Niagara region in the west as far as Quebec City in the east. Our people are still living in many communities throughout our territory. We still carry on intercommunity trade as we always have. The Iroquois Confederacy is both a military and a sovereign political ally of the British and the Americans. We've never given up our sovereignty, nor have we willingly ceded our land and territories. We still hold and exercise our original rights and freedoms.
Kahnawake, Kanesatake, Akwesasne, Tyendinaga, Wahta, Six Nations of the Grand River, and Oneida of the Thames are the communities of the Iroquois Confederacy. Although we are separated by distance, we recognize that we are one people who share a common identity, common responsibilities, and our own system of law and government. Among our member communities, we have four of the five largest reserves in Canada. The elected councils of our communities have united in a political forum known as the Iroquois Caucus, and we represent the interests of our combined population of more than 60,000 people.
We have tried to have our issues and views presented through other processes and organizations. This has not worked for us. We have decided that now and in the future we will represent ourselves at all regional, national, and international levels and speak on our own behalf. As one people, we will have no other organization represent us or speak for us without our express consent, including the Assembly of First Nations.
Any agreement they enter into cannot be binding on us without our consent. As original nations of this continent, we have always maintained that we are nations within the meaning of international law and have never given up this status. As far back as the League of Nations, the forerunner of the United Nations, we have sent delegations asserting our sovereignty and imploring the crown to live up to its treaties with us.
Our relationship is with the crown and is governed by the Two Row Wampum, one of the oldest treaties in North America. It is interpreted to mean that in the same way as two rows do not intersect, our respective governments also agreed not to interfere with each other. The purpose was to establish and maintain peace and friendship within our nations. The Two Row defines our relationship by recognizing that we are equal but separate nations, and that forms the basis of all our treaties and agreements that followed.
We have continued to adhere to the relationship because it is our responsibility. We teach our children about responsibility because they will inherit this responsibility after we're gone and because peace is always desirable over a state of conflict, and friendship is a desired societal goal. But we find that Canada, which is responsible for this relationship on behalf of the crown, does not honour the agreements made by its forebears.
Rather than approaching the issue as allies and seeking a peaceful resolve, we are too often faced with unilateral decisions directed to us on how the issues will be handled. As a result, we find ourselves faced with the prospect of constant conflict.
Our treaties with the crown are vastly different from the so-called numbered treaties with Canada. Our pre-Confederation treaties are of governance, sharing, honour, and respect between the crown and the Iroquois, but they do not include extinguishment of our title.
Let it be understood that settlements resulting from any process will not include any release of our lands, and no amount of money can replace our children's future in our lands.
Our original relationship is represented by the Two Row Wampum for the purposes of establishing peace and friendship between us. The occupations, protests, and even armed conflict that has been occurring and continues to occur in our communities over land issues and claims is inconsistent with the intent of our relationship. It is a continual state of conflict that neither of us desire. As a result, we want this bill to be withdrawn.
We recommend developing a fair process based on our original relationship with the crown, a process whereby reconciling our interests would achieve peaceful and more acceptable resolutions for settling grievances. We are prepared to work with the federal government in developing such a process.
I have a summary of recommendations. I'll read two of them, and my colleague chiefs will jump in after me.
Recommendation number one is that a fair process be developed based on our original relationship with the crown, a process in which reconciling our interests could achieve peaceful and more acceptable resolutions to settling grievances. The Iroquois Caucus is prepared to work with the federal government in developing such a process.
Recommendation number two is that Canada withdraw this bill until a full and inclusive consultation has taken place with all affected aboriginal nations through a process jointly designed with them and adequately funded.
I'd ask my colleague, Chief Randall Phillips, to carry on.
Again I want to thank you for the opportunity to appear before you. My time is short, so I'll cut to the chase.
As I said, my name is Bill Montour, and I'm the elected chief of the Six Nations of the Grand River. We are located in southwest Ontario, just west of Hamilton. Six Nations is the largest first nation in Canada, with a total population of over 22,000 citizens.
We have fewer than 5% of our original land holdings, as promised by the Haldimand Treaty of 1784. That translates to fewer than 46,000 acres of the approximately 950,000 acres promised by the crown to win our alliance with Britain throughout the revolutionary wars of independence with the Americas.
This number is significant, because, as you can well see, the difference in these numbers indicates the volume of the so-called land claims, with many years of compensation requiring redress. Today's value of this land in southern Ontario makes many of our documented rights to the land outside the scope of the financial cap contained in . Therefore, creative solutions will have to be implemented if the honour of the crown is to be maintained and our treaties fulfilled.
On November 2, 1796, 36 Mohawk, Oneida, Seneca, Onondaga, and Cayuga Indian chiefs authorized Joseph Brant to surrender in trust to the crown four blocks of land containing 302,907 acres for the purpose of establishing an annuity for the perpetual care and benefit of the Six Nations.
This was secured by 999-year mortgages between 1798 and 1811, but covered only a portion of the lands as identified. Continuous revenues from the mortgaged lands are no longer deposited to the Six Nations trust funds, nor have proper mortgages been entered into for all the lands placed in trust with the crown.
In 1796, funds were treatied to secure our perpetual care and maintenance and to ensure our education needs, our health care needs, our social program needs, and our housing and infrastructure needs are met to our standards.
We are supportive of the Iroquois Caucus brief to this committee, but I would also like to make or reinforce a few key points.
One, the duty to consult was not met with this bill. The duty to consult rests with the crown, and Six Nations was not consulted. This duty cannot be delegated to others, such as the Assembly of First Nations. The Assembly of First Nations did not consult, nor was it their responsibility to consult. The duty is to consult the rights holders, which means our Six Nations government, not organizations. I also understand the AFN was forbidden by the federal government to share what they were working on.
Two, this bill violates our treaties with the crown, in particular the Gus-Wen-Tah, or Two Row, Treaty, where we agreed to not interfere with each other's affairs. Once again the federal government is trying to impose legislation on us. This must stop.
Three, Six Nations is engaged in important and sensitive negotiations over lands in dispute at Caledonia and other parts of our treaty territory along the Grand River. We have been given a verbal assurance that this legislation will not apply to these negotiations, and we have even been given the assurance that we will receive a letter to that effect. However, we believe a letter will likely be overruled by this legislation. Therefore, we want an exemption from this legislation specific to Six Nations to be inserted in this legislation.
Four, we would also like to see the protections contemplated in this bill transferred to the federal mandates and negotiators who are negotiating large claims settlements with Six Nations, such as time limits and removal of technical defences.
Five, lands must be on the table for negotiation. Six Nations of the Grand River's view is that lands must be returned to the Iroquois Nation equivalent to the same standing as held by the Haldimand Treaty or as specified by Six Nations.
Six, settlements must mean certainty for both the crown and Six Nations. We don't want you going back on your word or the intentions of written agreements, as practised by crown agents in the past. At the same time, we do not want to see any extinguishment of our rights and interests to the lands in question. We can be very specific about what rights all parties are to receive. Extinguishment was never contemplated in our land dealings. We leased land, often through the crown, as income for Six Nations and for perpetual care and maintenance of our territory and people. In specific areas we welcomed people to share our territory upon leasehold conditions and under terms conducive to our title to the lands being maintained and continuous ownership.
I want to make a final comment on terminology and why this issue is important to us. Our attempts to obtain justice over our land rights issues have been termed land claims by the Canadian government. This term is wrong, and a new term should be found. We suggest, perhaps, first nations lands reparations. We are not making a claim of land. If there is any doubt about who owns the land, for an incomplete or an illegal transaction, any doubt must fall on the side of the first nations. It reverts to the Six Nations.
The reason for these land reparations is important because they represent the potential to fulfill intended purposes of land transactions, again, the perpetual care and maintenance of our nation. They represent a way to provide economic development and to generate revenue to make our communities self-sufficient. We need these resources through just settlements to fill the current funding gaps on so many issues important to our community, such as the provision of clean, safe water; the protection of our languages, cultures, traditions, ceremonies; and the protection of our environment. All these things are necessary for the perpetual care and maintenance of our people. That is why these just settlements must include more than cash. They must include the return of our lands and resources, which we had never intended to part with. They must include justice.
Nia:wen. Thank you very much.
[Witness speaks in the Oneida language
Good afternoon. I want to thank everybody for the opportunity to present our views on this bill to this committee.
First of all, I want to start by saying that I'm the elected chief of our community. I say “elected”, and I make that distinction for two reasons. Our community is involved with a traditional style of governance. We still have titleholders and clan mothers within our community. I make that distinction to one, respect them, and two, to make it clear that there is a distinction with regard to this notion of governance. So I put that as a preamble in terms of my statements, Mr. Chair.
The Oneida Nation of the Thames generally supports the submission of the Iroquois Caucus in its concerns about the proposed act to create a specific claims tribunal, Bill . For example, we support the assertions that the Gus-Wen-Tah, or Two Row Wampum, is an ancient treaty right of all Iroquois communities and that Bill C-30 is in direct breach of this; that the Assembly of First Nations has no authority to represent our nations or our communities; that the federal duty to consult has not been met; that the tribunal, as proposed, is not independent; that land should be a part of the specific claims settlements; and that imposing Bill C-30 is a direct breach of and a purported extinguishment of our existing section 35 rights.
Our ancestors immigrated to Canada circa 1840. The Oneida Nation of the Thames was not granted any lands in Canada; rather, we purchased our settlement territory with our own funds. These funds were placed in trust, with the Indian department of the day, to purchase several tracts of land for the use and benefit of the Oneida Nation of the Thames people. Consequently, many of our specific claims deal with the land itself. We have outstanding issues with Canada as to whether we've received as much land as we paid for and whether we paid for certain tracts of land twice.
Our territory is not whole. There are conspicuous absences of land in the territory that we purchased. There are also issues of regaining the land that was once part of our purchased territory that has been lost to taxes or fraud by government agents. Our elders recount stories that indicate our land holdings once extended far beyond the currently recognized Oneida Nation of the Thames boundaries. Therefore, the provisions in clause 20, which refer to monetary compensation only, are simply not acceptable to the Oneida Nation of the Thames.
Entitlement to land we rightfully paid for will always be a contention of the Oneida Nation of the Thames, regardless of what legislation is passed by Canada. The right to manage our own lands has been a hallmark of our internal jurisdiction of the Oneida Nation of the Thames since we came to Canada in 1840.
Currently, the Oneida Nation of the Thames exercises inherent jurisdiction over internal matters such as land transfers, probate of estates, approving wills, and appointing executors and administrators of estates. Our jurisdiction originates from an 1840 order in council, which is outside the relevant Indian Act sections, and reads:
||Under the circumstances represented of a number of Indians coming into the Province possessed of means to purchase land, the Council do not think the Government is under any obligation to interfere with their affairs any more than in the case of ordinary immigrants; and the state of civilization to which they are said to have attained makes it, in the opinion of the Council, advisable to leave them to their own discretion in the management of their property....
Let me repeat that: it's “advisable to leave them to their own discretion in the management of their property”.
|| ...but they should receive when they require it, the advice, counsel and protection of the Indian Department and of the Government, so as to insure the success of the Settlement as far as possible.
That's an order in council granted August 14, 1840.
The Oneida Nation of the Thames has continuously exercised this internal jurisdiction and has operated our custom landholding system for the past 170 years in reliance of our rights, as is stated in this order in council.
Bill , if implemented as proposed, would amount to a unilateral extinguishment of our rights arising from that order in council. Why? Because clause 4 of that bill states that the act will prevail when there is a “conflict between this Act and any other Act of Parliament”.
Oneida has a sui generis relationship with Canada when it comes to our land holdings and our rights to our territorial base. Passing this legislation amounts to a unilateral back-door constitutional amendment, because it eliminates or amends our section 35 rights under the Constitution Act of 1982.
The Oneida Nation of the Thames demands that the federal government enter into negotiations immediately with our nation to reaffirm our ancient and existing rights with respect to our internal management of our lands, which has always been outside of the Indian Act.
There are some specific issues that we have with , and I'd like to focus on those.
Clause 3 gives the tribunal the power to determine the validity of claims, as well as to decide the amount, if any, of compensation that is owed related to those claims. This is not an independent tribunal by any stretch of the imagination. If you look at the combined effects of clauses 3, 11, 14, 19, 20, and 35 of the bill, what you have is one party of Canada appointing the judge and jury who will be deciding the cases against themselves. This is an affront to the principles of natural justice. There is no judicial independence. We submit that this type of scheme would only bring the administration of justice into disrepute. This process is fundamentally flawed. Maybe there might be some role for the tribunal and its expertise to determine what is fair compensation after there's been a determination of the validity of the claim, but to have the same body determine both is unacceptable.
Clause 5, when viewed in conjunction with clauses 34 and 35, creates a very real disincentive for first nations to file with the tribunal because, in effect, if the tribunal denies your claim, automatically the government is released from any liability or any damages that may have been payable arising from the facts surrounding the claim in the first place. This renders first nations rights and appeals useless and redundant.
Under clause 13, the tribunal may hear evidence with respect to cultural diversity, but they cannot award any amount for the head under this claim of subparagraph 20(1)(d)(ii), which deals with losses of a spiritual or cultural nature.
Subclause 13(2) demands repayment of the moneys provided to the claimant first nations after a successful claim. This is offensive. Why should we have to pay for something that is Canada's fiduciary obligation and their duty to protect--our lands and our rights upon those lands? We agreed to be accountable, but this clawback provision is unacceptable.
First nations already must deal with the ridiculous bureaucratic red tape for grossly inadequate funding. This inherently limits what research we can conduct, and thereby compromises our properly preparing claims. Funding should be provided to first nations with no strings attached. This government has unlimited resources. By contrast, we have very little.
Clause 23 is flawed, because the province must consent to be bound by the terms of the decision of the tribunal. Provinces will never consent to be bound. They are the ones that first nations oftentimes have claims against due to the divisions of power in the BNA Act.
The limits placed on the amount and the award are arbitrary and unreasonable. The ability for the crown to take up to five years to pay under clause 36 is discriminatory, as all other court judgments are fully payable immediately.
In summary, the overall flavour of the bill is one of reconciliation—
On our concerns with the proposed legislation, when we were informed about the development of new legislation to replace the specific claims policy and we heard the AFN was going to be involved in drafting the legislation, we anticipated a draft piece of legislation that would address the concerns of first nations and that we would be consulted adequately because we would be affected by the legislation.
We were disappointed to see that the legislation was introduced into the House of Commons prior to consultation. Instead, we are expected to provide a reactionary response to an already introduced bill, with no guarantee that our concerns will be considered. We were further surprised to find out that the AFN was not able to discuss the proposed legislation with first nations prior to it being introduced. Both Canada and the AFN failed to consult with first nations in any meaningful way prior to introducing this legislation in the House.
After the fact, we find that the proposed legislation resolves many of the federal government's administrative difficulties with the current policy, but does very little to address the title interests of first nations. We have major concerns with this proposed legislation as it stands.
After reviewing the proposed legislation, we reiterate and support all of the comments that were previously presented by the Iroquois Caucus. We offer the following comments on specific aspects of the proposed legislation that fail to address the needs and interests of our community. This submission does not constitute consultation, but outlines our concerns with the proposed legislation.
On conflict of interest, Canada has stated that this proposed legislation gets rid of the conflict of interest that exists with the current specific claims policy. In our view, the conflict of interest still prevails. Canada, through the Department of Indian Affairs, will still determine the validity of a claim and whether it will be accepted for negotiation or not, based on a legal opinion from the Department of Justice Canada. If the claim is not accepted or it is rejected, under the proposed legislation a first nation will have the option of going to the tribunal. At the tribunal, a first nation's claim will be heard by a Superior Court judge who has been selected by the Department of Justice Canada and appointed by Canada. Given that Canada will retain control of the claim submission process and the appointment of judges, the conflict of interest has not been rectified.
Next is the lack of land as compensation--only monetary compensation. Our biggest concern with the proposed bill is that the lack of restoration of land as a form of compensation is not there. This legislation as it stands only provides monetary compensation, not land. This is an infringement on our rights under the Simcoe Deed, or Treaty 3 1/2, which is a constitutionally protected right under Canada's Constitution in section 35.
Our specific treaty states:
||And that in case any Person other than the Chiefs, Warriors, Women and People of the said Six Nations shall under pretence of any such Title as aforesaid presume to possess or occupy the said District or Territory or any part or parcel thereof that it shall and may be lawful for Us, our Heirs and Successors at any time hereafter to enter upon the Lands so occupied and possessed by any other Person or Persons other than the said Chiefs, Warriors, Women and People of the Six Nations and them the said Intruders thereof and therefrom wholly to dispossess and evict and to resume the same to Ourselves, Our Heirs and Successors.
This means that the crown or its heirs have a fiduciary duty to dispossess trespassers from our land. These treaty provisions embody the special relationship between the Mohawks and the British crown as military allies, and cannot be forgotten by subsequent layers of legislation.
The current specific claims policy under “outstanding business” has a provision for land under compensation. Paragraph 3)(i) states:
||3)(i) Where a claimant band can establish that certain of its reserve lands were never lawfully surrendered, or otherwise taken under legal authority, the band shall be compensated either by the return of these lands or by payment of the current, unimproved value of the lands.
||(ii) compensation may include an amount based on the loss of use of the lands in question, where it can be established that the claimants did in fact suffer such a loss. In every case the loss shall be the net loss.
The experience of the Mohawks of the Bay of Quinte with the specific claims policy is that Canada's negotiators tend to turn a blind eye to the land compensation component of the policy. Canada's negotiators instead follow an unwritten policy of monetary compensation only, and then advise first nations that they can use the settlement moneys to purchase lands on a willing seller, willing buyer basis. Rather than recognize the fiduciary role to the treaty provisions of protecting the land, the crown has instead followed a course of action toward extinguishment of aboriginal title. The establishment of a tribunal to address monetary compensation only further ignores the treaty relationship that exists between our community and Canada.
The only mandate we have from our community in negotiating land claims is to have the land returned to our growing population and to seek compensation for the loss of use of that land.
Under the proposed legislation, monetary compensation is set at a maximum of $150 million. This is a combination of current market value compensation and loss-of-use compensation. No amount of money can entice us to surrender our lands.
Ladies and gentlemen, members of the Standing Committee on Aboriginal Affairs, first nations communities, chiefs, and councillors, my name is Tim Thompson. I am Grand Chief for the Mohawks of Akwesasne, a community of approximately 12,000 Mohawks who reside on ancient aboriginal territory along the St. Lawrence River.
Akwesasne has a unique geographical and political location between the countries of Canada and the U.S. and the provinces of Ontario and Quebec and New York state. Our community has been involved in several land claims with Canada over many years. Some of our claims are very large. Some are currently being negotiated. Some are being litigated. Some have been in the process for more than 30 years. Some have been rejected. And there will definitely be some Akwesasne claims that will be impacted by this legislation.
We come to the standing committee because we have not been consulted on the new Specific Claims Tribunal, Bill , and we want to bring our concerns forward on this impending legislation.
We believe that the first of many shortcomings surrounding the new bill is the lack of direct consultation with first nations communities. AFN does not represent the Mohawks of Akwesasne. We are a member of the Independent First Nations of Ontario and the Iroquois Caucus, neither of which have had meaningful consultation in this process. Some very important issues, such as claims over $150 million and some additions to reserve issues, have not yet been resolved, even though Canada and the AFN recognize that there are many unresolved issues with regard to this new legislation and have proposed that these concerns will be negotiated through political agreements with AFN.
Without a consultation process, communities like Akwesasne will have no part in the building of legislation that will ultimately affect them. Akwesasne, therefore, does not know the future outcome of some very important issues, if in fact we will be consulted, or if the issues will be resolved to our benefit.
At present, Canada has aligned itself with the Assembly of First Nations as the main counterpoint to the negotiations to move Bill through Parliament. Akwesasne considers this very political approach to consultation with first nations inadequate. For important legislation such as this, which will impact the relationship of the crown and first nations for decades, real and meaningful consultation must be held with all first nations.
Canadian courts have stressed that negotiation is preferable to litigation to resolve aboriginal claims. The Specific Claims Tribunal will create a new level of litigation in claims, with many of the disadvantages of the court. For example, the political nature of the claims permits them to address flexibility. The tribunal, in contrast, would only be able to offer cash. The political nature of negotiations allows communities to have real control over the outcomes. The tribunal would give increased authority to the lawyers. In court, if you make a statement of claim and the statement of defence raises new issues, you have a right to reply. With the new tribunal, you have no right to bring the evidence to rebut the grounds of the rejection of your claim. It appears to us that the tribunal has a more limited range of processes and remedies available to it than the Indian Claims Commission did.
The present Indian Claims Commission has worked hard to establish a reputation for impartiality. We worry that the new tribunal will be seen as Canada's attempt to replace an impartial body with one that will be more favourable to the federal government's position. One of the most significant issues is the makeup of the tribunal. Currently, Bill proposes that Canada will appoint Superior Court judges, of which only one will hear any particular claim. We do not believe that decisions on claims should fall to just one judge. Additionally, the selection and appointment process for the members of the tribunal is not reassuring. It is only in the political agreement, not the legislation, that consultation with AFN regarding the recommendation of judges to the tribunal is proposed.
Depending on the makeup of the tribunal, it might provide federal claims officials and negotiators with an incentive to reject claims or have negotiations break down, as the tribunal could be seen as pro-federal rather than impartial.
Bill will also create a more structured approach to specific claims, which will have the effect of providing very little flexibility to the tribunal to address the unique and complex circumstances that have created the claims in the first place.
The new act provides for monetary settlement only. Other creative solutions or options, which may be more reasonable, productive, practical, or restorative, will not be entertained.
Most claims are about land. The fact that the tribunal can only award cash means it would not be able to address many claims in a way that would satisfy the claimants. The fact that the courts can deliver land at least more often than the federal system will promote litigation. Bill will completely eliminate the ability of first nations to bring any discussions or studies relating to the social, cultural, and spiritual connection to the land as part of the negotiating process to settle a specific claim. Bill C-30 clearly makes this a non-negotiable issue.
The political agreement states that:
||...resolving claims is a legal and moral obligation, and recognizing the cultural, spiritual, social and economic significance to a First Nation of recovering or replacing land that was unlawfully taken.
The words are beautiful, but they fall far short of one important component. They do not allow for the discussion or negotiation regarding injuries to culture that are associated with loss of land. First nations know the impacts of injury to culture that have occurred with loss of land. This obvious injury should not be ignored.
The new legislation proposes to exclude claims in excess of $150 million. This exclusion is something the AFN proposes to address through a political agreement. Meanwhile, its exclusion will allow government officials to coerce first nations to artificially devalue their claims to fit the current criteria. With a cap on the size of the claim that the tribunal can address, federal negotiators will be tempted to collapse negotiations on large claims knowing they have nowhere else to go, while there will be pressure on first nations to accept less than fair value for their claims to bring them under the cap if a claim goes to the tribunal. The presence of the tribunal as a process for settling smaller claims will be accentuated as a further excuse for avoiding settlement of larger claims.
The larger claims represent the greatest benefit for first nations and the greatest accumulated debt on the part of the federal government. However, with a limited annual budget and a fascination with statistics, Canada prefers to resolve smaller claims. If the tribunal is not able to address the larger claims, these larger claims will be further deferred and become even less likely to be resolved. With the cabinet looking at these claims, it surely shows there would be no transparency about the decisions that are made, as these decisions will be made behind closed doors.
With the Iroquois Caucus, many of our claims are above $150 million. When Canada says there are 20 claims in excess of $150 million, sitting at the table are probably 16 of those claims.
One major obstacle to settling specific claims is the lack of clarity in Canadian law. Currently, only the courts can clarify the law, but litigation is currently being discouraged. Unless the rules and practices governing the claims process, including those proposed for the tribunal, are clarified and expanded, claims will remain unresolved.
Bill also appears to place into legislation the retroactive surrender of lands originally taken illegally as a consequence of settling a specific claim and receiving compensation. There will be no future options available on this point if this legislation is passed by Parliament.
In conclusion, I would like to say that the AFN is not a first nation and does not speak for all first nations in Canada. Akwesasne wishes to make it abundantly clear that support by the AFN does not translate into acceptance of the specific claims bill, Bill C-30, by the first nations who are affected by this bill. It is important that Canada honour its obligation to first nations communities to consult with them regarding the legislation that will affect their claims and their future.
Before I end, we make the following recommendations:
A bona fide consultation process must occur with full participation of first nations communities.
Revisit the terms of reference, capacity, authority, and remedies available to the tribunal.
The make-up of the tribunal should be composed of a variety of disciplines and should include first nations members.
The tribunal should be a three-member panel, one being a Superior Court justice and the other two members representing other related disciplines appropriate to the circumstances of the specific claims, all having an equal voice.
The settlement solutions available to the tribunal should include land, financial, and other creative components in a manner that will satisfy the parties.
There should be consultation with first nations to ensure that the political agreement provides for the discussion on restorative justice with regard to injury to culture associated with the land.
There should be consultation with first nations to ensure that the political agreement provides for the discussion on claims above $150 million.
Consultation with first nations should occur to ensure that the political agreement provides for clarity in the rules and practices that are used in the settlement claim.
Consultation with first nations should occur to ensure the political agreement provides for discussions on options regarding the surrender component of claim settlements.
With that, I thank you. Nia:wen.
Thank you, Mr. Chairman.
Before I begin, I'd like to acknowledge the panel here today, as well as the other chiefs and councillors who are here with our sister communities, our elders, and the elder who has given me the opportunity to speak for us today on behalf of the people of Kahnawake.
I'm Grand Chief Mike Delisle Junior. Greetings from the Mohawk community of Kahnawake, near Montreal.
We are a community that has a significant place in the history of this country since before European contact. Kahnawake itself has contributed to the establishment of the communities of Huronne-Lorette-Wendake, near Quebec City; Kanesatake at Oka, Quebec; Akwesasne near Cornwall, Ontario; Wahta near Bala, Ontario; and Nipissing near Sturgeon Falls, Ontario. We can trace some of our descendants to Manitoulin Island, Ontario, and the Michel Band in Alberta.
The Mohawks of Kahnawake have been central to the founding of this country of Canada, and a relationship exists between our peoples that can be traced to the relationship formed in pre-Confederation treaties. Peace, honour, and respect are our governing principles, and our relationship with Canada is based upon these founding principles. We take our crown treaties and our relationship very seriously, and we are bound by the mutual promises made by the crown and by our people. Our treaties are not the numbered treaties of Canada.
We have asked, and we are called before you, to comment on the proposed . This has been on our minds since the tabling of the proposed legislation. We present the following concerns for your consideration.
There has been lack of broad consultation on the proposed legislation. The fact that the Assembly of First Nations has collaborated with the Government of Canada in this enterprise does not automatically mean that all Indian organizations or communities are in agreement with this most important and significant piece of legislation, since many communities are not represented by the organization known as the Assembly of First Nations. The fact that four Assembly of First Nations regional chiefs--all westerners--and officials have worked hand in hand with the Prime Minister's office and the Department of Indian Affairs to draft this legislation does not mean that all communities across this country have been consulted and/or agree with this legislation. In fact, your committee has heard from one of the drafters of , Chief Lawrence Joseph, that no consultation on the development of the content of the bill occurred.
There are communities, like Kahnawake, that do not form part of the AFN structure. There is a national perception that the AFN represents all aboriginal communities, and there is advance celebration hailing the cooperative nature of the drafting of the legislation. There is a perception that all dissension on the issue of specific claims has been dissolved through the auspices and involvement of the AFN in the drafting of this legislation. We state for the record today that this is not so.
The community of Kahnawake is fully able to negotiate and enter into agreements without the assistance or approval of the AFN, and we will not be tripped up by the agreements and legislation that the national organization has entered into without our approval or support. Agreement with this proposed legislation requires the full agreement and consent of the full council of Kahnawake and other first nations councils, not just a few chiefs in a closed meeting of the AFN. Kahnawake has a serious obligation to look at this legislation so as to avoid further conflicts with the Canadian people.
While many Mohawk communities have grievances well over the proposed $150 million cap, the federal policies that are intrinsic to specific claims have the possibility of becoming the law and therefore the power to overshadow negotiations of larger special grievances.
We believe this legislation would have the effect of tying the hands of the federal negotiators on possible win-win outcomes of negotiations. Such measures will leave our communities dissatisfied with any proposed settlement. This is not relationship building. It is most important to keep in mind that the Iroquoian communities in the eastern region of Canada, and particularly Kahnawake, have important grievances that have relevance, particularly with the British crown, from 1760 onward. Our community wishes to be treated fairly, and the honour of the crown demands that our lands be protected as promised.
Removing the large-value grievances from the application of the tribunal process does not remove the impact of the legislation of these policies made into law. We believe there will be an impact through the legislation of what was once policy and that there will be a major effect on the larger grievances.
When Kahnawake proposes new or creative solutions on our grievances, we don't want to hear from federal negotiators that their hands are tied by this legislation.
While no amendments to proposed are acceptable, here are issues embedded in the proposed legislation that concern us.
Bill proposes to make a law that will legislate all of the shortcomings of the current federal specific claims policy and Canada's approach to limit negotiations. It will offer inadequate monetary-only settlements for lands that have a great social, cultural, and spiritual connection for the Mohawks of Kahnawake. Money is not the solution here for us: we want land.
Such legislation will likely impact all stages of the specific claims process, including larger claims valued over $150 million that need separate cabinet authority, which should include a resolution of those grievances outside the specific claims policy and which is inadequate to deal with special grievances.
The proposed law would leave very little flexibility for the tribunal to address the uniqueness and complexities of historical land grievances submissions.
Example: The proposed bill will limit the compensation for a settlement to monetary values and limit options like return of land or other considerations that could be explored for resolutions. Furthermore, the bill should not permit Canada to download the responsibility for settling with the first nations their valid land grievances to third parties, including the provinces, which cannot opt not to take part in the tribunal's proceedings and decision. The bill proposes the crown would pay compensation only to the extent of their actions.
The Mohawks of Kahnawake do not agree that as a consequence of receiving compensation, all of our interests in these lands must be released to Canada, and in that process the third parties' interests become retroactively validated to when the land was taken, which the Mohawks of Kahnawake believe would be unconstitutional.
Why do we think this is unconstitutional? The royal proclamation requires lands to be alienated only to the crown through its approval at public community meetings specifically for that purpose. The Constitution says we have protections for our territories. Our treaties with the crown say the same thing. The Constitution affirms my people's rights, and if the Government of Canada has a fiduciary obligation to protect our land, then how is that function served?
What is being asked, then? Is this first nation giving up their right to their territories, to third parties in a roundabout way or indirectly? How is it that the proposed Bill can ask my community to validate third-party rights over the rights of my own people? I believe this legislation would be an end run around the royal proclamation.
Again, to simplify, lands can only go to the crown by referendum of the whole community. If the Constitution recognizes or affirms our rights, then we question the objectives of this proposed law, where a third party suddenly is positioned in advance of our ancestral rights to the lands. We have other treaties stating that the crown promises to protect us in our lands, and this proposed law does not do this. It has the effect of superseding your Constitution indirectly. If you are not able to circumvent the Constitution or cannot do directly what you seek, then you cannot do this indirectly through this legislation.
In fact, the 1982 specific claims policy allows return of lands, cash compensation, and other considerations. To be more detailed once again, the specific claims policy is problematic, yet Canada plans to legislate a more encompassing requirement for release of all interests in the lands that were illegally taken from our communities when the policy does not require release of all interest in alienated land. It is the interpretation of the Indian Act surrender clause that does. So legislation putting into law more restrictions is not conducive to settlement.
Finally, the crown, as well as the independent tribunal process, should promote reconciliation with particular emphasis on our historic and continuing relationship with the crown. So it would be more appropriate to have the tribunal composed of individuals from a variety of disciplines and backgrounds, including first nations individuals, not just Superior Court judges solely appointed by the crown.
Again, Canada has a legal obligation to consult all first nations that could be impacted by Bill . Considering that the requirement of retroactive release of all interests in favour of third parties does impact first nations, this should trigger the obligation. In fact, all first nations should be made aware of all proposed legislation and what the impact may mean for our communities. Consultation is a requirement that we see in extensive, ongoing discussions on claims, yet the requirement seems one-sided, since we are rushing this proposed legislation--a lack of consultation from the crown side.
The Mohawk Council of Kahnawake does not agree with the AFN's endorsement of Bill , and Canada's consultation with the AFN is not sufficient or acceptable, especially in consideration of my community's treaty history and current history, where confrontations have occurred generated by a lack of consultation.
The Mohawks of Kahnawake also cannot support that the AFN can represent us in the political agreement, which was signed by the AFN national chief and the Minister of Indian Affairs, on claims issues not addressed in Bill .
Lack of consultation is a breach of Canada's legal obligation and further tarnishes the honour of the crown. If you continue with the bill as is, without wider consultation, it would be a significant defect in your legislative process and could promote challenges to the legislation.
In summary, the Mohawks of Kahnawake recommend that Canada be reminded of its constitutional obligations and not be allowed to propose legislation to do indirectly what they cannot do directly on the issue of first nations lands.
The Mohawks of Kahnawake recommend that the standing committee inform Parliament that Bill is flawed, that it is not ready to move forward, that no amendments will make Bill C-30 acceptable, and that Bill C-30 be withdrawn,
The Mohawks of Kahnawake recommend that the standing committee inform Parliament that any future specialized tribunal developed pursuant to a bill must be truly representative of first nations involvement, with a broader mandate and greater flexibility to address different steps in the resolution process and to take into account the wide variety of contexts.
The Mohawks of Kahnawake are fully prepared to engage in consultation, developing a fair process with alternate approaches to resolving larger and smaller land grievances.
We also recommend a principled approach that addresses our mutual concerns and furthers our relationship.This should be the basis for resolving grievances.
Thank you, Mr. Chairman and committee members. Subject to any comments or questions, this is the presentation for the Mohawks of Kahnawake on this important proposed legislation. In the spirit of co-existence, we thank you.
I have listened carefully to your answers and I have read your submissions closely. I would have about 2,494,000 questions for you, but I likely will not have time to get to all of them. I will try to go slowly.
I have read this document and as I understand it, in nearly one quarter of the province of Ontario, the government needs to sit down and negotiate with the Six Nations in southern Ontario, something it has not done since 1793, if I am not mistaken.
Do you really believe that the claims of the Six Nations can be settled through Bill ? The government has not even been able to resolve the Caledonia standoff. Do you think a bill can resolve a problem that has been 200 years in the making? I read the brief submitted by the Iroquois Caucus and found it very interesting. The following is stated:
| The federal government has asked the question who can they consult with if not AFN. The simple answer is they can consult and obtain the consent with the same government they signed treaties with—the 80 First Nations across Canada...
I have a problem with that statement. Do you really see consulting with those who signed the treaties as genuine consultation, given that the government does not even respect the treaties it has signed? Would this not be akin to investing in an endless process?
I realize that I have only seven minutes and I want to allow you time to respond. We are not here to engage in politics, but rather to have a friendly discussion. The federal government decided to recognize the Quebec nation and we know what that has accomplished.
You occupied the land long before we did. How can we ensure that successive governments respect your rights so that we can avoid other Caledonias in the months ahead? What is the solution? The government believed that Bill was the solution.
From what I understand—and you need not reiterate your position—as far as the Iroquois are concerned, Bill C-30 will be of absolutely no use until such time as the government does not sit down and negotiate with them. What then is the solution to this dilemma?
I wish you the best of luck. You will need it to answer the question.
I want to thank you for coming before the committee with some very well-prepared documents. Unlike Mr. Lemay, I probably have more questions than you have time for.
Part of it is that you have identified a real challenge in that this is a fundamental issue of rights and title. As well, there is the fact that this particular piece of legislation doesn't recognize the differences in process from coast to coast to coast, whether they are under a proclamation of 1763 or the numbered treaties. As I told some of you this morning, I come from a province in which, largely, there are no treaties, and that's presenting challenges.
In your presentations there were a couple of points I want to touch on. As we know, this legislation doesn't define a number of areas. For example, clause 16 talks about things like a reasonable minimum standard for a claim to come forward, but that is not defined in the legislation. The transitional pieces are not defined in such a way that there's any assurance it will actually do away with the specific claims backlog.
Chief Montour touched on this verbal assurance that a negotiation that is in process will continue. Last week the Okanagan band talked about a letter of comfort they received, which poorly defined how their additions to reserve process would go forward. The political agreement itself is vague and ill defined.
I wonder if you could offer some suggestions. One of the things Kahnawake identified was a beefed-up mediation process, a negotiation process, an alternative dispute resolution process. A number of other witnesses have come forward with the same suggestion as a way to move this forward in a more respectful way. I wonder if you could comment, first of all, on how some of the vagaries of this legislation could be locked down, and on negotiation, mediation, or alternative dispute resolution as another option.
Thank you, Mr. Chair. Perhaps I might not be the last questioner. We might have another round.
I appreciate all the testimony today from the members who have come before us from your various nations. I appreciate, of course, in a democracy that we always have the opportunity to sometimes agree and other times to disagree.
Perhaps one particular point of testimony that I'll maybe ask a few questions on is just going back to Chief Phillips, to some of his testimony. You mentioned the tribunal we're proposing is inappropriate, and you went on with some commentary. I just want to speak a little towards why I believe the existing status quo is inappropriate.
We have situations where specific claims that are being put forward by first nations come to the government, and the government, as it currently stands, can either acknowledge those claims or not. As such, the Government of Canada is the judge and jury on these claims. Many have said through the years, and I agree, that this is an unacceptable, inappropriate situation. This specific claims commission came forward, but of course it did not have any binding elements to it...when it would rule. It would bring forward recommendations to the Government of Canada, but the Government of Canada again being judge and jury simply might choose not to proceed with those recommendations of the commission. However, the new tribunal, which is being proposed through this legislation, would be an entity all to itself, which would actually have the opportunity to create binding settlements and actually deliver real dollars towards these specific claims.
So it takes it out of the hands of the federal government, which many first nations have argued have a bias, whether it be to protect the public purse or to protect itself from lawsuit. So it's this very legislation that in my opinion is trying to set aside the inappropriate status quo.
My question for you would be this. In light of the fact that we have an inappropriate status quo, where the Government of Canada is judge and jury, do you believe this process, though perhaps not perfect, is in fact a departure from the status quo? Due to the fact that it is only voluntary, it can't be, at the very least, seen as a bad departure from the status quo. I would argue it's a good departure. I just want to hear your feedback on what I've said.
I want to thank each of the witnesses for the time they've invested today.
In the consultation or talks today, whatever you want to determine this is, we've focused primarily on the tribunal aspect of Bill , and we've overlooked the possibility of negotiations occurring prior to going to the tribunal. I think it's quite possible that in that negotiation phase, because of the eventuality of the tribunal, there may in fact be productive discussions leading to creative solutions that could possibly lead to settlements other than cash settlements. That's one point I would like to make, and maybe you could respond to that.
The second one has been mentioned briefly, which is that this whole process is voluntary. It's mentioned clearly in the preamble, and again in clause 5 of the bill, that the process is a voluntary process.
It's clear to me that Bill was designed to address the very severe problem of the number of backlogged specific claims cases. This has been a problem for decades. The current system is obviously failing all of us. It's failing first nations people as well as other Canadians--all Canadians. So this is an attempt to move ahead on a process that will help the entire country resolve outstanding claims. That's what all of us around this table want. I believe that's what everybody in this room wants: to move ahead.
Would you rather continue with the status quo? Some groups have come here and said they need amendments. But at the end of the day, they said they would rather have the bill in its current form than risk an amendment that would possibly bog down the entire system. So would you rather live with the current system, with its more than 800 backlog cases?
Second, in terms of the cap of $150 million, it's my feeling that if we remove the large percentage of claims that are within the system now, the smaller claims, it would allow the bigger claims to get more attention from the department so that these could in fact be settled.
Would you care to respond to those questions?