Our official start time is 8:00 a.m.
I like to be on time because it's important that everyone gets their allocated time so that we are fair, that everyone has an opportunity to be heard, and that members of Parliament are able to ask questions to ensure that our report is comprehensive. This will form the basis of what we will provide to the Government of Canada.
First of all, I'd like to recognize that we're on the traditional land of the Mohawk people.
This is our fourth visit. We started in Vancouver, went to Winnipeg, went to Quebec City yesterday, and are now in Belleville. In three weeks, we are heading up to Yellowknife. The committee is studying land claims, both comprehensive and specific.
It's important that we reflect on this at this time, as our has indicated that the relationship between Canada and our first nations, our first peoples, our indigenous peoples, is the most important. We are on a process of truth and finally reconciliation.
What will happen is that, although we cannot cut you a cheque, we can make recommendations to government.
Voices: Oh, oh!
The Chair: That might have been a recommendation from some other delegations.
What we can do is provide a new summary of the situation, how things are now. I know that you've probably participated in similar committees and reviews, and what makes this different is that we have a government and a who sincerely wants to make a change.
We will prepare a report, and you can submit information in briefs until October 20, and that will be included in the report. Of course, the documents will be part of that more comprehensive storage of Library materials. The report will have a number of recommendations put forward by members of the committee, and we will submit it to the Government of Canada, who will then officially respond to our recommendations. It is part of a process of truth and reconciliation and strengthening our relationship with our first peoples.
We're thrilled to be here in Belleville and to hear from you. I hope that you had a safe journey and everything was good. We appreciate that you took the time to come out.
Pursuant to Standing Order 108(2), we are studying specific claims and comprehensive land claim agreements, and I wish to welcome you.
The process is that you have 10 minutes to present. We have two presenters, so after both groups have presented, we'll open the floor to questions. There's a first round of seven minutes, and then it moves into five-minute rounds. I'd ask members to indicate who they're directing their questions to.
Good morning. Either group can begin. You can decide between the two of you who wants to start.
, 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.
Good morning. I'd like to acknowledge the Tyendinaga territory, and the surrounding first nations.
My name is Luke Hunter. I am the research director of land, rights, and treaty research of the Nishnawbe Aski Nation. I am going to be specifically talking about specific claims and the process.
The Nishnawbe Aski Nation represents 49 first nations in Treaty No. 9 and Treaty No. 5 in northern Ontario. The combined treaty territory covers two-thirds of the province of Ontario, more than 700,000 square kilometres. It's one of the largest treaty areas in Ontario.
Working with the treaty first nations for more than 30 years, the land claims research unit has been very active in research and filing the specific claims, including several significant and successful treaty land entitlement, TLE, claims. None of these claims have been taken to a specific claims tribunal, though some matters have been taken to court. The work of the claims unit has clarified a codified history of our treaty territories, the Treaty No. 9 and Treaty No. 5 first nations in Ontario, enriching and empowering the resources for our communities.
The fact the standing committee is reviewing the specific claims policy and the legislation is very positive. NAN welcomes the opportunity to share some initial points and considerations with the committee.
As a matter of context, there is a high-level dialogue on specific claims policy going on between the federal government and the Assembly of First Nations, AFN. The eventual report of the standing committee helped shape this process in a substantive way. We are cautiously optimistic the bilateral discussions will address many of the significant problems with the specific claims policy, in particular, those problems that were aggravated in the last few years.
Unlike the record after the claims tribunal legislation, specific claims policy must be developed jointly through the discussions between first nations and Canada. That is the only way to succeed.
Considering the specific claims policy should be guided by some shared principles and values. In particular, article 27 of the United Nations Declaration on the Rights of Indigenous Peoples, also known as UNDRIP, provides in part that states like Canada shall establish, in conjunction with indigenous peoples, a fair, independent, impartial, open, and transparent process to recognize and adjudicate the rights of indigenous people pertaining to their lands, territories, and resources.
Article 28 provides that indigenous peoples have the right to redress, including just, fair, and equitable compensation for confiscated or damaged lands and resources.
We can also jointly rely on the principles respecting the Government of Canada's relationship with indigenous people recently released by the Department of Justice. Principle 3 states that the honour of the crown guides the conduct of the crown in all of its dealings with indigenous people.
There have been numerous studies on specific claims policies over the decades. In general, we endorse the conclusions of the two more recent reviews. One is the AFN expert panel report that was done in 2015, and second is the Auditor General's report six of last year. We trust the committee will rely on the past studies to form its conclusions and expedite the final report.
Without repeating the detailed reviews of the past, we would like to take this opportunity to raise some issues and concerns of particular interest to NAN without being comprehensive, given the time we have today.
The first issue is funding. Even though “Justice At Last”, the specific claims action plan of the previous government was supposed to address the backlog of claims, the government drastically reduced funding for first nation claims and research units.
Funding for the NAN unit was reduced without notice by as much as 60%. There was absolutely no justification for the radical attack on the claims process. The inevitable result has been more delay in the preparation and filing of claims to the greater prejudice to first nations.
At minimum, funding should be reinstated to the previous levels. Going forward, funding should be secured, taking into account considerations such as the number of potential claims identified as well as inflation. First nations costs for the tribunal process should be covered, including any judicial review applications to the Federal Court. Funding should also take into account the special costs of doing business in the far north, in our area. Most of our work is done with our remote communities.
One possibility is to flow funding through the specific claims tribunal in order to address the perceived conflict of interest position of the federal government. A related issue is the arbitrary cap placed on the loan funding for negotiations once a claim is validated. Funding levels are not sufficient for communities to exercise due diligence in terms of legal advice, experts, and community meetings. Negotiation funding should be based on actual costs, and should be determined jointly by the federal government and the affected first nations. Also, at least some of the funding should be on a grant basis, to avoid the problem of final settlements being undermined by the process of debt.
A long-standing problem with the specific claim policy and legislation is the relatively narrow scope of eligible claims. For example, even though the policy is supposed to deal with treaty infractions or violations, it excludes any program issues such as education. This is nonsensical, as both Treaty No. 5 and Treaty No. 9 contain clear and strong education provisions. Another example is the narrow scope of the exclusion of claims based on treaty rights related to activities of an ongoing variable nature, such as harvesting rights. This is noted in page 5 of the specific claims policy process guide. This exclusion is arbitrary and unfair. The harvesting provisions of both NAN treaties are critical and important.
The harvesting rights were often affected negatively by developments and resource use authorized by the federal government in the past. Also, the federal policy does not deal adequately or at all with emerging doctrine and the honour of the crown. As noted above, 10 relationship principles have been published by the Department of Justice, including overriding recognition of the honour of the crown.
In general terms, we understand, in the focus of the specific claims, the process regarding lawful obligations and their breach. However, the focus should be broadened to include relationship and equity issues, even where there is no clear technical breach of law. This is what I referred to as moving beyond the lawful obligation.
The equity-based approach is consistent with the honour of the crown and the overarching objective of moving forward with reconciliation. NAN has also put emphasis on the federal government's finality in relation to claims settlement. Complete and final releases are no doubt appropriate in certain situations; however, there should be some flexibility built into the policy. For example, we believe in the absolute finality in some of the cases, such as treaty entitlement claims, but we believe the formula in the treaty should be open-ended.
The other note I want to make a point on with regard to the current policy is that Canada tends to use technical defences, even though it is not supposed to. Under the policy, it's supposed to refrain from using the statute of limitations, but to reduce its liability, when it approves, or for negotiations, the letter will say that it's using the 1951 Indian Act amendments to undermine its liability.
Unfortunately, I think that's all I'm going to say. I have more points, but I will provide the summary of my notes to the committee.
[Witness speaks in Mohawk
I'm Chief Donald Maracle of the Mohawks of the Bay of Quinte. I've been the elected chief for 24 years in our community.
The Mohawks of the Bay of Quinte are part of the Mohawk nation within the Six Nations Iroquois Confederacy. We are one of the Six Nations communities politically associated with the Iroquois Caucus and a member first nation of the Association of Iroquois and Allied Indians.
The Tyendinaga Mohawk Territory is located along the shores of the beautiful Bay of Quinte. We are approximately 20 kilometres east of this venue today. Our current membership as of August 31 is 9,775 members. We have an on-reserve population of 2,175. This does not take into account the number of non-registered people living in our community who are part of our members' families.
Our community has the third-largest membership in indigenous communities in Ontario and the 10th largest in Canada. We are currently in negotiations with Canada on the Culbertson Tract claim of 923.4 acres. This claim has attempted to be negotiated in the past. We've taken Canada to court for a judicial review in regard to not negotiating in good faith and being open to negotiating under all aspects of the specific claims policy.
We are recently back at the table with hopes of settling a portion of this claim, 300 acres. We are now seeing some creative activity in the thinking at the table, but there are still constraints.
In the past we've had to request a judicial review in order to have Canada not only negotiate in good faith, but also follow all aspects of their policy. The position of only monetary compensation and not land is an infringement on our rights. Under the Simcoe Deed, Treaty No. 3½, our treaty states:
||And that in case any Person or Persons other than the said 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 [those] Lands so occupied and possessed by any other Person or Persons other than the said Chiefs Warriors Women and People of the said 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 has the 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 that cannot be forgotten by subsequent layers of legislation and policy. Today I brought the photograph of one of those historic allies, Mohawk military captain Joseph Brant and the Mohawk captain Deseronto.
The Mohawks of the Bay of Quinte's experience with this 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 the first nations that they can use the settlement monies to purchase the 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 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 one is to have the land returned to our growing community and to seek compensation for loss of use.
On the monetary compensation, the $150-million limit, if negotiations fail, we end up at the tribunal. We would have no choice but to accept monetary compensation. Monetary compensation is set at a maximum of $150 million at the tribunal level. This is a combination of the current market value compensation and loss-of-use compensation. No amount of money can entice us to surrender our land. Money does not address the crown's responsibilities to our treaty, nor will it address the growing need for restoration of land for the generations to come.
Given the fact that our community has less than 20% of its treaty land left, with approximately 75 acres under potential claim, it is doubtful that our claims will fit into the process, especially when taking into account third party developments on the claim areas.
The requirement that first nations surrender all interests in or rights to the land resources upon the settlement of a claim is preposterous. This clause is also an infringement on our treaty rights under the specific Simcoe Deed, Treaty No 3½, which outlines how the lands are to be disposed of. It reads:
||Provided always nevertheless that if at any time the said Chiefs Warriors Women and People of the said Six Nations should be inclined to dispose of and Surrender their Use and Interest in the said District or Territory, the same shall be purchased only for Us in Our Name at some Public Meeting or Assembly of the Chiefs Warriors and People of the said Six Nations to be held for that purpose by the Governor Lieutenant Governor or Person Administering Our Government in Our Province of Upper Canada.
This is very similar to the provisions of the Royal Proclamation of 1763, which set the foundation for recognizing and addressing aboriginal title and interest in lands. This is part of Canada's Constitution.
Why should our people be expected to extinguish our title interests in lands so third parties can remain on the land? We did not surrender it in the first place. Perhaps Canada deems it easier to dispossess our people rather than third parties that have been given flawed title to our lands by the crown. An original injustice cannot be corrected by creating another injustice. Why does Canada fail to recognize first nation title interests in the land?
Through government-fuelled propaganda, the media often portrays first nation claims as flimsy alleged claims rather than legitimate outstanding legal grievances based on aboriginal treaty breaches by the crown. It would go a long way if Canada were to stand up and say, “We are negotiating because this particular first nation has outstanding title interests that can no longer be ignored.”
In order to have reconciliation, the crown must admit the mistakes of its predecessors and take responsibility for past mistakes. Extinguishing aboriginal title and treaty rights through federal policies does not set a proper tone for reconciliation.
Canada's position has been that it has no land to offer for the settlement of claims, yet Canada is able to purchase land when needed under other circumstances. Canada has powers of expropriation, as well as the ability to purchase land; however, Canada, through the Department of Justice and the Department of Indigenous and Northern Affairs, chooses not to utilize these powers and abilities to settle first nation claims.
Canada's position is that first nations can use the compensation money to purchase the lands on a willing seller, willing buyer basis. The purchased land can then be applied for as an addition to reserve. It is unreasonable to expect our community to buy its own treaty lands back when the treaty outlines that it's Canada's responsibility to correct the breach by removing the third parties from our land.
Under the addition-to-reserve policy, Indian and Northern Affairs bureaucrats decide whether the land purchased by a first nation can be added to the reserve or not. This policy deals with Indian land as a mere policy issue, rather than recognizing the constitutionally protected aboriginal and treaty rights of aboriginal peoples.
Our community has many claims that will be submitted to the federal government and Ontario for resolution in the near future; however, we cannot submit any of our claims into a process that continues to ignore aboriginal and treaty rights or requires our extinguishment of title.
I must reiterate that our mandate is to negotiate for the return and control of the lands and to discuss loss-of-use compensation for the time that we have been without the use of the land and the benefit of the land. We do not have a mandate to discuss extinguishment of our rights to lands that are needed now and will be needed in generations to come.
I guess I should give a little background first. Obviously, Chief Gauthier sends his regrets. Being the leader of a first nations government, he has many demands placed upon him every day, in the same way that I'm sure you do, honourable members.
The Missanabie Cree First Nation is party to Treaty No. 9, but it never received any reserve land despite repeated requests following the treaty commission's visit to what is today known as Missanabie station, sort of in the hinterland of northern Ontario, north of Wawa. As a landless band, Canada has admitted in litigation at the Superior Court that it has an outstanding obligation to perform the sacred Treaty No. 9 promise to provide the Missanabie Cree First Nation with a reserve. This failure to fulfill its constitutional and treaty obligations in a reasonable and timely manner constitutes a breach of treaty fiduciary duty and the honour of the crown, which of course is always at stake when dealing with first nations.
In addition to its entitlement to reserve land, the Missanabie Cree also seek equitable compensation for the extensive damage and irreparable harm caused by the mass displacement of the Missanabie Cree from their traditional territory, and countless social impacts suffered by generations of Missanabie Cree for more than 110 years. Of course, having said that Canada acknowledges this lawful obligation, it probably perplexes many people why this is still a claim caught up in the system, but I will get to that in a moment. I'm just going to continue with another little summary here about Treaty No. 9 and Missanabie.
Prior to Treaty No. 9, treaties were negotiated and entered into solely between the federal government and the Indians. However, in 1894, Ontario and Canada signed a formal agreement, ratified by imperial statute, which stated:
||that any future treaties with the Indians in respect of territory in Ontario to which they have not before the passing of the said statutes surrendered their claim aforesaid, shall be deemed to require the concurrence of the government of Ontario
In effect, when the treaty commissioners were out making Treaty No. 9, Ontario was a party to that treaty and effectively, through the terms of that treaty, carried significant veto power over the allocation of reserve lands to first nations. Of course, that factors substantially into the Missanabie Cree's claim, because much of the reason, as far as we can tell, why they never received their reserve was due to the economic interests of the Province of Ontario for its benefit alone and to the exclusion of the Missanabie Cree.
A final point on that is that Treaty No. 9 was radically different in that it was drafted by lawyers for the Government of Canada and the Province of Ontario without the involvement, input, or consent of the Indian bands whose aboriginal title was to be extinguished by its terms. The treaty was engrossed on parchment paper by the crown—not different than many of the cellphone agreements you and I enter into on a regular basis—and the treaty commissioner set out in 1905 and 1906 and signed adhesions with some, obviously not all, of the bands of Indians occupying the vast territory covered by Treaty No. 9, an area comprising 90,000 square miles of land rich in gold, minerals, timber, and other natural resources.
It's often said that with the first signature to that treaty, to that parchment paper, first nations had fulfilled their aspect of the treaty obligation, which was in effect the cession of aboriginal title to all of that land. Of course, in exchange for that are the solemn and sacred promises that are obviously enshrined in Treaty No. 9, many, if not all of which, have either been only partially fulfilled or not fulfilled at all.
Now popping over in my presentation, more substantively, I have some observations I will briefly discuss with this committee in relation to the specific claims process. My commentary and recommendations would have substantial influence over the resolution of the Missanabie Cree's treaty land entitlement claim. That said, I must add that because this claim, which I am counsel to, is in advanced stages of a negotiated resolution, I'll not be directly commenting on that claim. I would also like to take a moment and provide the committee with two documents, which I have provided to my friend over there already, which underpin much of what I will briefly discuss this morning. I've been told I should also pass on my notes. My notes are somewhat useful and, hopefully, I'll clean them up before I send them to you.
The first document was prepared by my principal, Ron Maurice, and it's titled “Recent Developments in the Law of Equitable Compensation”. This material describes the recent decision of the Specific Claims Tribunal respecting 13 first nations specific claims arising from the crown's non-payment of treaty annuities in the aftermath of the Riel Rebellion.
This decision has dramatic ramifications for the crown's risk assessment, and the global value of specific claims making their way through the specific claims process.
That's basically a case summary, a very important one, detailing what the tribunal has found in terms of equitable compensation and what it means. For all practical purposes, basically it's a specialized tribunal that has recognized that the basic principles of equitable compensation that apply in the context of common law writ large outside of the specific claims process do apply to first nations, and that indeed the result of that is a significant impact to the global value of these historical losses when they're compounded through time.
The second document was prepared by me, and it's titled “Exploring Access to Justice through Canada's Specific Claims Process”. This paper reviews features of the specific claims process that have emerged over the last 40-plus years; features of dispute resolution that have been employed to reconcile the relationships between first nations and Canada arising from centuries-old specific claims; a detailed analysis and commentary on the dispute resolution process as it is today; and a commentary on whether the current iteration is capable of addressing the desired outcome.
Then there's some analysis of the stats and the outcomes that are present in the process. Most of that is drive-by audits from your government in the last year, and submissions to the five-year review of the Specific Claims Tribunal Act, which was conducted by the chair of that tribunal, Justice Slade.
I will start there, the desired outcome. Central to the resolution of specific claims is the promotion of reconciliation between first nations, the crown, and non-indigenous populations in Canada. Chief Justice Dickson observed that the relationship between the crown and first nations is trust-like rather than adversarial. This unique relationship informs the challenges and distinctive nature of the specific claims process.
The first important but simple observation that I'll touch on briefly today—and I heard some people talking about it over breakfast—pertains to the cap, the cap placed upon specific claims and more broadly the general accessibility of justice in the context of specific claims under the policy and at the tribunal.
I have two minutes left. I better pick this up.
I'm just going to read this straight through. I'll ask for an indulgence as I complete what is maybe another five minutes. I see he's refusing the indulgence.
Then I'll just say it really simply that the $150-million cap is too low, in light of developments in the case law. It means that a lot of straightforward claims involving credible acreage, surrender claims, and treaty land entitlement claims now fall outside of the benefits of the tribunal process, and $150 million isn't enough. By restricting claimants under the policy and before the tribunal to $150 million, you are in effect obstructing access to justice for countless first nations whose claims are now forced to enter the judicial process, which is filled with all sorts of challenges.
This brings me to point number two, technical defences. Until 1951, first nations weren't able to retain legal counsel. Many other restrictions have been placed on their ability to realize justice arising from historical specific claims. Today, in every single piece of litigation before the superior courts, you will find the crown defending on the basis of limitation periods, for example, which of course, in effect, extinguish aboriginal and treaty rights by virtue of their operation in statute barred claims.
My simple recommendation in this regard is to amend the legislation—either to recognize, the way you have in the tribunal process, that those limitation defences have no effect, or perhaps to create a grace period effective the date of that legislation, allowing for 10 to 15 years for all outstanding historical specific claims to be filed into the process, which would be immune to those types of defences. If you don't do that, the result would be decades-long litigation of going in and out of abeyance and negotiation, and in and out of various interlocutory or dispositive motions, which cost a lot of money.
The final comment I have is that, from our perspective, the tribunal is working. We believe that the tribunal is substantially achieving the objectives that it sought to effect. I will start briefly by looking at the case of Beardy's and Okemasis. That was the test case for the treaty annuities claims. It was submitted to the ministry in 2001, and it was rejected in 2008. Ordinarily, the only recourse would have been to the courts, where technical obstacles abound and often Eurocentric trial judges preside.
The tribunal went into operation in 2011, and this was the second claim filed with it. In 2016, we obtained a decision on damages. Since that time, we have seen a sort of centrifugal force, if you will. More and more claims are now being accepted for negotiation, as the risk assessment becomes more realistic at the Department of Justice, which we feel stems from the realization and resolution of these claims before a neutral, independent third party adjudicator.
I'll go right to it. On December 15, 2015, stated the following:
||This is a time of real and positive change. We know what is needed is a total renewal of the relationship between Canada and Indigenous peoples. We have a plan to move towards a nation-to-nation relationship based on recognition, rights, respect, cooperation and partnership....
||And we will, in partnership with Indigenous communities, the provinces, territories, and other vital partners, fully implement the Calls to Action of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
Six Nations of the Grand River could not agree more.
[Witness speaks in Mohawk]
I am the elected chief of Six Nations. My name is Ava Hill. I am a Mohawk from the Six Nations of the Grand River territory, and I'm here today representing the most largely populated first nation in Canada with some of the largest validated and unresolved land rights issues facing Canada.
I have with me Philip Monture, who is our land rights expert and has been working on this for the last 40 years or more.
We also have a package of information that we've left with the clerk, which includes our presentation along with a number of attachments that I'll be referring to.
In making this presentation I want to acknowledge that we are on the traditional territory of our Mohawk brothers and sisters of the Mohawks of the Bay of Quinte.
The Truth and Reconciliation Commission report, as referenced by the , set out the principles of reconciliation with the first principle being the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation at all levels and across all sectors of Canadian society.
On May 10, 2016, at the United Nations in New York City, Canada formally adopted the declaration and said we are now a full supporter of the declaration without qualification and stated that by adopting and implementing the declaration we are excited that we are breathing life into section 35 and recognizing it as the full box of rights for indigenous peoples in Canada.
I was at the UN permanent forum when made this announcement to the assembly, and I witnessed the indigenous groups from around the world giving Canada a standing ovation—such a standing ovation and vocal acknowledgement of the important announcement that the minister had to come back to finish her presentation.
Although it has taken Canada a long while to commit, it was the right thing for Canada to do.
As for some of the problems with Canada's land claims policies, I'm certain, with the mandate of this committee to study aspects of outstanding indigenous land issues and to review the federal policies regarding comprehensive and specific claims, you've heard evidence from many first nations from across Canada about what is wrong with the system. We won't reiterate much of the same, but we do feel that the report by the national claims research directors on March 9, 2015, which was entitled “In Bad Faith: Justice at Last and Canada's Failure to Resolve Specific Claims” and the Office of the Auditor General of Canada's 2016 fall report on “First Nations Specific Claims—Indigenous and Northern Affairs”, both identify most of the shortcomings and failures.
A nation-to-nation relationship based on indigenous rights, respect, co-operation, and partnership cannot and must not pretend to happen on the extinguishment of indigenous peoples' rights to their lands and resources. Canada's specific and comprehensive claims are contrary to this principle and must be replaced—period. Anything less places Canada contradicting any nation-to-nation relationship that the promised indigenous peoples in Canada and Canadians generally. These two claims policies undermine the unqualified support for the UN declaration that Canada has internationally committed to embrace.
In addition, the cap of $150 million for the settlement of claims makes the process useless for the Six Nations large claim. With the many failures of Canada's claims policies, the Six Nations of the Grand River foresaw no justice utilizing these policies as the remedy to the crown's mismanagement of our lands, resources, and monies. Instead, we chose litigation in 1995 over Canada's failed land claims policies.
We want to affirm our nation-to-nation relationship and find resolutions to Canada's liabilities through good faith discussion and through revenue and resource sharing agreements. Guided by the United Nations declaration principles, we can re-establish the relationship and properly fulfill the legal duty of the crown to consult and accommodate Six Nations as we continue to share our Haldimand treaty lands with our neighbours, municipalities, Ontario, Canada, and the corporate sector.
What Six Nations is going to present today is not new. We have been consistent with what the Six Nations of the Grand River presented to the Parliamentary Task Force on Indian Self-government on June 29, 1983, wherein we outlined how self-government for Six Nations can be financed using our unresolved land rights issues with the crown; with numerous presentations to the United Nations Permanent Forum on Indigenous Issues; and with many of Canada's parliamentarians since May 2011.
Six Nations Haldimand treaty lands cover an area of 950,000 acres, of which 275,000 acres are subject to treaty fulfillment, 402,000 are subject to 999-year payments intended to finance Six Nations peoples' well-being and government, and 19,000 acres were sanctioned for short-term leasing arrangements to sustain a Six Nations revenue stream.
These three examples alone would go a long way towards addressing the critical needs of the Six Nations people. However, the wisdom of the government officials of the day put a prohibition on our leasing arrangements on March 3, 1821. This is a mere snapshot of the thousands of land and financial issues between our nations requiring resolve. More details on other land issues and crown mismanagement of Six Nations funds and natural resources can be read in our “Land Rights, a Global Solution for the Six Nations of the Grand River”.
With respect to Ontario, on May 30, 2016, Premier Kathleen Wynne confirmed Ontario's commitment to implement the Truth and Reconciliation Commission recommendations, the TRC recommendations. She said, “I hope to demonstrate our government's commitment to changing the future by building relationships based on trust, respect and Indigenous Peoples' inherent right to self-government.” She promised to engage with indigenous partners on approaches to enhance participation in the resource sector by improving the way resource benefits are shared and to work with the federal government to address the UN Declaration on the Rights of Indigenous Peoples.
Recently, the Province of Ontario introduced the aboriginal price adder to its feed-in tariff program of Ontario's Green Energy and Green Economy Act, allowing indigenous first nations an opportunity to participate. With green energy initiatives being developed within the Six Nations treaty lands and guided by the UN declaration principles and the legal duty to consult and accommodate, Six Nations aggressively partnered and invested in these developments. Today, we have secured more than $1.4 million in post-secondary contributions to supplement our educational shortfalls. We will generate more than $100 million over the next 20 years for our community needs, and to date we have supported 892 megawatts of green energy in our battle against climate change and have created countless employment opportunities for Six Nations and surrounding people.
I applaud Ontario's green energy initiatives and the inclusion of indigenous governments in these developments. They have proven that revenue sharing is nothing to be afraid of but is instead a principle to be supported. For more than 40 years the Six Nations of the Grand River have not stood dormant in spite of our unresolved land issues with Canada. We have worked on consultation and accommodation agreements with our surrounding neighbours and the corporate world to help strengthen our nation and to protect our rights throughout our treaty lands, from bridges crossing the Grand River, to flood control dikes to protect the general population, to many infrastructure projects required by the surrounding municipalities.
We require environmental enhancements and mitigation of developments. We have created educational opportunities for our students of all ages and we have secured long-term revenue streams to support these unique educational opportunities. We have established partnerships with international proponents to enhance our economic opportunities and to help build infrastructure at Six Nations. This has also allowed us to secure land holdings to expand our much-needed land base, but we have had these efforts thwarted by Canada's additions to reserve policy.
Six Nations of the Grand River are including themselves in acceptable developments within our treaty lands, subject to Six Nations own consultation and accommodation policy. We are producing revenues and other creative accommodations to address our people's needs. These are needs that the crown in right of Canada fails to address on an almost daily basis. All the while, Six Nations are not required to extinguish a thing. We do, however, entertain these agreements, specifically without prejudice to Six Nations aboriginal and treaty rights and without prejudice to Six Nations' litigation against Canada and Ontario. Yet the sun still shines and the grass still grows and the rivers are still flowing.
To the members of the committee, I have outlined before you how Six Nations of the Grand River implements partnerships with indigenous communities, the provinces, territories, and other vital partners, and intends to fully implement the calls to action of the Truth and Reconciliation Commission, starting with the implementation of the United Nations declaration. This is how nation-to-nation building with the indigenous peoples needs to begin.
For Six Nations, indigenous governance is tied to the land. As part of our June 1983 report to the parliamentary task force on Indian self-government, we stated that entrenchment of our right to self-government will also mean entrenching our relationship as a government with the federal government in specific ways. This relationship will be in the future, as in the past, between the people of Six Nations and the crown. Self-determination, Indian government, and a special relationship are empty words unless there are the resources to make them real.
Six Nations has been in court with Canada and Ontario since 1995, seeking resolve for our land rights and the financial mismanagement of our resources. We would prefer negotiating rooms instead of courtrooms. Under the present governments, both Canada and Ontario have indicated their willingness to negotiate, but new mandates are required for both.
Lastly, Six Nations calls on Canada and the province to return to the negotiating table with a proper mandate to rebuild this nation-to-nation relationship. Long-term, sustainable, and manageable revenue streams to offset the legal liabilities facing Canada today must go directly to the Six Nations government to supplement the educational and social shortfalls our community faces daily. This will take time, and we are willing to invest this time, and do it right for the Six Nations people's future, and for the future of our neighbours.
As we, the Six Nations, agreed to share our lands, we expect nothing less than Canada and Ontario agreeing to partnership building and revenue sharing from all uses of our lands and resources throughout our Haldimand Treaty. Six Nations wants to talk revenue sharing for all natural resources, including aggregate and gypsum, extraction and water consumption within our Haldimand Treaty lands. We want to discuss sharing in a percentage of all land transfers, taxes, and development fees.
We have always been key players in protecting Mother Earth, and as such, we want to continue to proceed down this path in our battle against climate change.
This is the process Six Nations has proven works. It is a process we feel the and the premier need to implement to resolve past wrongs, and without extinguishment of our children's treaty rights. Canada and Ontario can implement such a process to positively fulfill their political commitments to the indigenous people in Canada and to all Canadians.
Thank you. We look forward to this new beginning.
I would also like to acknowledge that we're on the traditional lands of the Tyendinaga Mohawk people. Thank you so much, Chief, for allowing us to use these lands today during these proceedings.
I also want to let everyone know about Orange Shirt Day today, which is in recognition of residential school survivors. The local college, Loyalist College, is hosting an official event today around Orange Shirt Day. I see that one of the members in the crowd is wearing an orange shirt. I commend you.
I also want to express the profound gratitude I have to Chief Maracle for his guidance and his education over the past 20 years of our friendship in helping me to better understand the injustices that have occurred to indigenous peoples. He has informed my position on many issues since I've been here on this committee. Thank you very much, Chief.
Because we don't have a lot of time, I want to try to encapsulate some of what we have heard here today and throughout the issues around land claims that need to be solved. I'd like to just go through the list and then see if there are others you would like to add to it and comment on.
First, right off the bat, is the issue of land title and the determination of trying to extinguish that title. People have made very, very clear that it is just a non-starter right out of the gate and that indigenous peoples will never give up title to their land.
Second on the list is funding, and it starts right from the very beginning of the process around funding for research, funding for negotiations, and then funding for settlement. As you mentioned, the cap of $150 million is far too low, and as Chief Maracle mentioned, it isn't just about compensation, it's about land and the return of that land. We need to find settlements in funding for the government to purchase land and not just give money to indigenous communities to then purchase the land for themselves to bring back into reserves.
On negotiations, timelines, and inefficiencies, when negotiations take 15 to 30 years to achieve a settlement, that's a generation, a lost generation of development, a lost generation of economic opportunity, and a lost generation of once again making our indigenous peoples whole in respect to their connection to the land.
The next issue is negotiations from the standpoint of clear mandates and of the authority of the negotiators to negotiate and not just come to the table and then go back and report to their masters back at INAC or back in Ottawa. They need authority to ensure that the right people are at the table and that it's not just INAC. Justice, Natural Resources, Fisheries, or whatever entity has part of that claim needs to be at the table and needs to have authority to negotiate.
Concerning the independence of tribunals, we have tribunals for specific claims, but we don't have a tribunal for comprehensive claims. When the negotiations break down, and then everybody walks away from the table, there is no recourse to take it further. There is no independence as far as determining whether a claim is legitimate or not. There is no independence around working together towards policies or, in fact, a legislative framework that could better enforce, not just for today, but for future governments, so that we fulfill the mandate of being fair and equitable in developing a trusting relationship that finds resolution in this process.
The list includes independence, not just on ruling that there is a right, but being able to assign either compensation or land as part of that ruling so that, once again, it's not just kicked back over to government, or appealed, and we start the process all over again.
Finally on the list is education, educating the public on the importance of finding solutions, the importance of the historical injustices that occurred in the first place, and the importance of partnership in that solution, moving forward, so that all concerned parties benefit from the final outcome of negotiations in this overall process.
Would all of you agree that all of these issues are at the heart of what we're discussing?
Finally, as part of that legislation, we've heard loud and clear that a minimum standard of UNDRIP should be the basis of legislation moving forward.
Have I been able to encapsulate the overall framework that a lot of indigenous communities have brought forward in relation to the land claims issues in general? Could Chief Maracle respond, please?
, Chief Maracle, to you and to your Tyendinaga Mohawk people, for having us. It's appreciated.
I just want to say, on the record, that I find that all talk and no action is disingenuous and not conducive to reconciliation. I'm hearing a lot of great, very critical, but still constructive, commentary. The idea that there is no action being undertaken by the present government does not hold water and I just don't think that it's helpful, so I just want to put that on the record. It's too partisan.
To bring us to the case that Chief Maracle mentioned, I want to mention the decision by Justice Rennie. Thanks to my colleague, Mr. Bossio, I had the opportunity yesterday to read that decision and it was edifying. It really does go to the heart of what our specific claims discussion should be about. Is this the right process at all? Is this going to achieve reconciliation?
We're in a different place than we were in 2007. We've had some interesting points made around the 80-20 rule, which is now being reviewed by the government, and the openness to a more equitable compensation and equitable remedy approach. We've heard quite clearly the idea that Chief Hill presented that you want to be accommodated and that accommodation is much larger than just the lump sum of money. You've also made that point that it's not about the money, but it's about land.
If not 80-20, what is it? What does more equitable compensation actually look like? How should that be framed? Stepping back further, do you think that a Specific Claims Tribunal approach, which does involve negotiation, but also a degree of conflict inherent in it, is the right approach, as we move toward reconciliation?
Good morning. Greetings. I am Abram Benedict, Grand Chief of the Mohawk Council of Akwesasne.
I want to acknowledge the territory that we are on here today, a territory in which the Algonquins and the Haudenosaunee have historically met.
The Akwesasne territory I come from is a geographically unique place that is about three hours east of here. The territory straddles the international boundary between United States, upstate New York and Canada while straddling the Ontario and Quebec provincial line, the political borders which were all well after the community had been contemporarily occupied and the borders were drawn without community consent or consultation.
The Mohawk Council of Akwesasne is recognized under the Canadian portion of Akwesasne as the elected system, and it is comprised of 12 district chiefs and a grand chief, which position I hold now.
The Mohawk community of Akwesasne is a community of over 20,000 community members with ancestors who have inhabited the St. Lawrence Valley for centuries. The Mohawk Council of Akwesasne currently has 12,500 registered members. The community consists of 3,200 hectares of land as well as 60 kilometres of waterways that connect many water tributaries to what is known at the St. Lawrence River, which we are also on today.
There are a few claims we have active within Akwesasne, one of which is Canada's second largest thus far claim amount being offered, which is the Tsikaristisere-Dundee land claim. Currently the Government of Canada has offered $239 million for its breach of fiduciary responsibility for the misuse of 18,200 acres of land in the Dundee, Quebec, portion of Akwesasne.
We have a Seaway land claim, which is from the construction of a hydro dam in the international shipping channel known as the Seaway shipping channel, which was constructed in the 1950s. At that time, when the two governments of Canada and the United States viewed this project as a great success and an economic engine to join two countries, the reality was that in our community hundreds of metric tons of our land were being taken away and the lands were being expropriated and small amounts of compensation were offered to each individual member of the community. We have a claim against Canada for this.
The North Shore land claim, which is another claim that we are continuing to research, was recently submitted but unfortunately rejected under the current policies that exist. The Baxter and Barnhart claim is a very unique claim because it is a claim for an island that was in our traditional territory but then was later on traded with the United States. Now the Government of Canada maintains it is outside of their jurisdiction. And there's the New York state claim in which we are partners, we are applicants on it on as well as the Saint Regis Mohawk tribe and the Mohawk Nation Council of Chiefs. There are numerous other claims that our community has still in the research phase.
To assist the work of the Mohawk Council we have created an office called the Aboriginal Rights and Research Office, ARRO. The ARRO staff had been working on land claims during the 1980s with other departments and it was more formally established as a dedicated research office in 1989. Our community has been funding it, as has in part the government, based on submissions and approvals of resources, but for the most part we have funded it entirely on our own. The current staff includes a manager, four researchers and one records administrator.
With the dedicated assistance of our Aboriginal Rights and Research Office, the Mohawk Council and the community of Akwesasne have settled an Ontario Power Generation claim in 2008. As well, we have settled the Easterbrook claim in 2012.
Our core approach is a nation-to-nation approach where indigenous first nations communities have a level playing field when dealing with the Government of Canada in regard to being able to equitably resolve outstanding historical land claims. The tools required would increase the funding resources to create a joint process in policy implementation as well as development, independent services, and equal access to resolution services. This is something that was available in the past, where you were able to acquire the services of an outside facilitator during discussions. Now that has been brought back in and the dispute mechanism that's available is actually another department.
On reframing the approach to restoring lands, the return of lands, I know that a number of you have remarked that as you've travelled across the country this week other communities have said that it's not always about the money, it's about the return of land.
I'm joined here today by Mr. Phillipp White-Cree, who will provide more information about the unique aspects of Akwesasne, as well as our land claim issues. He is the acting manager from our department of aboriginal rights and research.
[Witness speaks in Mohawk
Greetings and peace to everybody here.
I'm Phillipp White-Cree. Within the last few weeks I've been assigned to become the acting manager for the Aboriginal Rights and Research Office. It's a task I don't take lightly, because there's already been three generations' worth of work within this office, and now I'm number four at bat. It's my commitment to work with the elders and mentors of our past as I continue to move our office forward.
The ultimate goal of our office was always to reassert that the lands were unjustly and unilaterally removed from Akwesasne's jurisdiction, and the ultimate goal of the community is to have the piece that is missing from our territories returned and made whole. The moneys benefit us, but it's really the land that has always been the primary and ultimate goal. These goals really go with Akwesasne's history, in which we had vast amounts of land that we were able to lease out in different areas, but because of the mismanagement of these leases...which the government and also the settlers have taken on and are saying that we no longer have jurisdiction over those lands.
As Abram has mentioned, we're really looking for the funding resources to be increased prior to the 2009 steady decrease of those funding resources. That has been an ongoing issue with my office. We have constraints of office space. We have constraints of office materials. Our archive room needs to be relocated because of the way our claims are having to grow, yet the financial resources are not available for us to be able to do that due diligence with our research.
We are asking for the joint processes and policy implementation and development to be done. The specific land claims process, from submission to evaluation to negotiations, to even settlement, needs to be re-evaluated jointly between Canada and first nations, because there are issues, bare minimums, criteria of judgment we do not understand, and we get frustrated when we simply get told, “We're only accepting x, y, and z. Here's the amount, take it or leave it.” These processes and these mandates are infuriating to our office, as well as infuriating to our community members when we try to explain that these are Canada's rules and they are not changing them. This is where we would like to stress that, as first nations, we would love to have a joint dialogue and joint discussion about the processes involved with this criteria of bare minimums.
On independent services and equal access to resolution services, the tribunal is considered an independent legal body, but for many it's considered a last resort because of the funding cap. There's no remediation of lands, there's no options for those remedies. The tribunal's rulings are under jurisdictional review. Again, it's Canada trying to say, “Oh well, that's not the final say”, even though first nations were always told that the tribunal's would be the final say on certain claims.
What we're asking is that there be alternative approaches, such as understanding the injury of culture, the loss of resources, the loss of connection that the community had with these lands. The lands never went anywhere, it's just that another body is claiming to have sole jurisdiction. For our community members this has been an ongoing battle in which we had court cases, including our fishing rights, tied to it because they said, “Oh, you don't have jurisdiction over those lands”. We've proven at the Supreme Court that our fishing rights, as long as we continue to use them, are there.
It's really to reframe the approach to the resolution of land claims, with the returning of land seen as the ultimate goal, and working with our neighbours and current occupiers of these lands and waterways.
The additions to reserve process again continues to be cumbersome. There are third party interests, stalled processes, and delays in the entire process.
Cultural restoration. Injury to culture should be taken into account.
From our perspective, Canada's mindset is the fear of liability, avoiding acknowledging mistakes. It almost seems as if they're wanting to eliminate or disrupt the land claims by limiting resources to first nations, avoiding moving files in the hope first nations grow tired of it and leaving it for the next political government to take up, avoiding paying damages and settlements as final negotiations end up becoming “take it or leave it”, and leaving first nations with no other option than to have that actual dialogue and those discussions in good faith.
So in reality, we're asking for these joint mandates and implementations, and we're seeking a human solution to this human-created inequality when it comes to the land claims process.
[Witness speaks in Mohawk]
I'm going to keep things as brief as I can, and not try to go over everything that has been gone over. They're all good points, but you don't need to hear me say them again.
The Mississaugas of Credit are about 2,600 people. We have treaty lands of basically from out near the Rouge, down near London, out past Guelph, and to Niagara Falls. As a matter of fact, the only assertion of title that Canada can make is through a treaty with the Mississaugas, within our treaty territories. One of the things we've done recently is we've realigned with the other Mississauga communities. There are six of us, and within that there are about 10,000 people. Historically, there were many more thousands of Mississauga people than that.
I must say that this process has been very telling for me, because I came into this thinking that when we talk about the specific claims and negotiations, it must stop being adversarial and it must become reconciliatory.
One of the things I want to touch on is how the claims are funded. There must be a better way to do it than simply having a cap and an upper limit on certain processes that we need to engage in. I've heard that other governments have used grant funding in the process, so maybe that's a model.
The separation of indigenous communities from the claims assessment process means it is obviously not a partnership. Basically, there's no dialogue during Canada's assessment stage. I know people have touched on this already, but for two to five years, or however long it takes—I know it's set now at three—it simply disappears and we don't hear anymore about it until, “Hello, here's our decision.” That's problematic, and it creates an adversarial relationship as opposed to a relationship where we could work together.
I must touch on this one. The Mississaugas have successfully settled three land claims, although I don't know how successful the Toronto Purchase one was in my eyes. We have many more outstanding. We have title claim to areas in the Rouge. We have made a title claim to all the waters of our traditional treaty lands. That's a very good read, by the way. If you get an opportunity to read that, it's very interesting, and a nice way to pass an evening.
The water claims were going along; we were working with a proponent who was hoping to put electrical lines underneath the lake-bed, which is our claim territory, where we say we have ownership. Things were going along okay, and then NRCan made a ruling without consulting us and discussing the impacts on our treaty assertions—our title assertions, actually, not our treaty assertions. Once that happened, we had no choice but to file for a judicial review, and that's where we are right now with the federal government.
That's one of the issues I believe was mentioned earlier. I know your government has many hands, but it doesn't seem like some of your hands know what the other ones are doing, so sometimes decisions are made at a certain level when in fact they're still working on a process.
Right now we've engaged the government in a round table, if you will, talking about how to ensure that this doesn't happen in the future, among other things, and how we can protect the assertions of title claims—maybe even treaty claims—from a perspective of what the federal government can do, such as put processes in place. I'm hoping that if it's a successful project, other first nations can build on it if they so choose.
The table was also to talk about governance, getting out of the Indian Act and that type of thing. It's very interesting, and we have some hope that it may lead to good work in the future.
I talked about the judicial review. Now we've contacted Ontario, because Ontario would have to do an easement, and we told Ontario that given there's a judicial review on this, we don't expect you to proceed with an easement.
Then we scrambled around and made sure that we had our workers on the ground contact their workers on the ground to say, here's where we're at, don't do this. It was just to make sure that something didn't happen without everybody knowing what's going on.
I'm not going to touch too much on this, because it's been touched on over and over, about the extinguishing of rights. It cannot be the way that we proceed under this type of process.
With regard to our water beds, our lake-beds, Canada will require that our title be extinguished as part of reaching a settlement of some type. This fosters the very same thinking of 200 years ago, when my people said, “This is about sharing the land. This is about using it. This is about safeguarding.” Your people said, “No, this is about owning. It is about ours and acquiring.” I think that kind of philosophy needs to be looked at again.
I'm not going to go into all the points that I have here, but I am going to talk a little more about some processes.
Within the specific claims process, it's so adversarial that there is no way to resolve claims. I mean, I've sat at the table with people who genuinely had affection for each other, but it is still an adversarial process. Meetings take place in the cities and not very often in the communities. There is strict adherence: you cannot inform your membership, you can't keep them updated. That really causes problems with building relations internally, as well as externally.
One of the things the government should be doing is that it should be mandatory that people involved in the negotiation process understand the indigenous perspective, understand our world views. I think there should be mandatory training for these types of processes.
I also think there needs to be some type of involvement in ceremony. I'd love to see some smudging in some protocols. Maybe you don't use them, but you wouldn't believe the effect they have on people in a room when there are adversarial relationships. It's very soothing and works to calm things down.
We also talked about open dialogue, what is on the table, how broadly we are speaking, when do issues get dealt with. This is more I guess on my side of the table. If we're in negotiations and we're having issues that come between us right at the get-go, they get pushed aside and we deal with everything around them until at the end of the day, 10 years later.... What happened in our claim was that the Toronto Islands were included in the claim. From the beginning we said that there was no way that the Toronto Islands were ever going to be a part of this claim. At the end of the day, because we didn't do the work on it immediately, the government said take it or leave it, take another 10 years and go to court. We really didn't have any options, so it must be very plain as to what's on the table.
Also, now I'm going to ask something that might be a little strange, but it's my last point. Do we always need a lawyer in the room? They're vital to the process, don't get me wrong, but any one of us can say “without prejudice”. At some point in time, you're actually going to have a table that talks about reconciliation. If you're going to talk about reconciliation—
[Member speaks in Cree
Madam Chair, I want to take this opportunity to respond to the accusations coming from the other side since I didn't get a chance to respond. I take reconciliation very seriously. After 35 years of honest effort at reconciliation, I took offence at the member for Pontiac's accusations of partisanship.
I listened to our witnesses this morning, and one of them said that although the commitments are very nice, it's not happening on the ground. Another witness concurred with that observation. I quoted the Canadian Human Rights Tribunal. I don't think we can say that the Canadian Human Rights Tribunal is a partisan body. What I'm trying to achieve here, Madam Chair, is what is just for this country. I've been doing that for the last 35 years. Being accused of partisanship was unwarranted on the part of the member for Pontiac. He may disagree with me, and I don't mind, but I certainly won't take any form of paternalism from anyone. We've had enough of that for 150 years. I don't think it's warranted anymore.
Thank you, Madam Chair. My apologies for that. I had to respond, I think I had the right to respond.
One of the things we've heard over and over again since we started in Vancouver on Monday is that the process failed a lot of first nations that had either comprehensive or specific claims. There needs to be a major change to that policy, or even to the approach to specific and comprehensive claims.
You talked about that. At the core of this problem is the need for a level playing field and equal access to resolution. We've heard that throughout. It's unjust that only monetary compensation is contemplated for specific claims and not for land. That seems to be your ultimate goal. I think a lot of groups across this country agree with that.
Injury to culture was also mentioned, and that is also contemplated by others. We're here to propose perhaps new policies or maybe a major change to a fair, transparent process that may be required in the future to deal with these challenging claims.
I'd like to hear more about what you would recommend to this committee for us to do our job and deliver to the present government. It's a very general question to all three of you.
One of the things we have contemplated, especially considering our unique geographical location in this country, is that perhaps we should look at treaty claims and the creation of a third, different claim category, instead of the existing ones, which would give due consideration to super-unique locations.
To one of the other points you made, I will tell you that currently we do have a settlement on offer, and we support all of the other positions made by members, the extinguishment of the right, which ends up in the language of the agreement itself. We are heading into the process where we have to go to the members for ratification. Being the second-largest community in Canada, behind Chief Hill's, we have a lot of members in our community. When Canada comes forward and tells us that we need to ratify in accordance with the referendum requirements, this means we have to have a double majority to accept it, because it's a surrender-type thing. In Akwesasne, there are 8,000 registered people who are 18 years and over, so a double majority is 4,000 people.
First, for us to achieve that number is almost impossible. We have been working on a specific one and saying that we have to find a way around this. The other thing is that, when we talk about the return of lands and the compensation aspect, I can tell you that, for us, to take it to the community and say that we are not getting any land back and we are getting this kind of money makes it an uphill battle also.
As we move forward, if we look at revamping some of the existing categories or creating a new one, this all needs to be taken into consideration. In a community of 1,000 people, it's easy to reach 200 people, no problem. But I can tell you that I don't know where all those 4,000 Mohawks are. I know a lot of people—I have a large community—but they are moving all over the place in Canada. That's something that needs to be given serious consideration.
I know that's a bit off topic there, but I think that, as we move forward, these are things that need to be considered.