AANO Committee Related Document

The Akaitcho Treaty 8 First Nations come before the Standing Committee on Aboriginal Affairs and Northern Development to support our cousins of the Tlicho Nation in their quest to complete their historic agreement with the Crown in right of Canada and the Northwest Territories.

And yet, only two years ago, the Akaitcho and Tlicho First Nations were locked in a bitter battle in court. The agreement that the Tlicho had made with the Crown threatened Akaitcho Dene territory and resources.

The Akaitcho and Tlicho leaderships were able to resolve their differences and signed an agreement to create a novel Shared Use Area. What had begun in conflict and had started to grow into violence ended in feasting and celebration.

We were able to agree to disagree on some things. We were able to agree on the boundaries between each other’s territories, and we were able to agree on the boundaries of an area where both of our great Nations had a compelling interest, and that we have agreed to share. We were able to demonstrate how strongly the Dene Nations feel toward their territories, and we were able to demonstrate too the deep Dene commitment to peaceful coexistence and honourable reconciliation.

The Akaitcho Treaty 8 First Nations hope and expect to be before this Committee again in the near future seeking the passage of legislation that will give effect to the Akaitcho Agreement. The Akaitcho Agreement is still under negotiation.

We are here principally to support the Tlicho, but we also wish to help this Committee understand something about the struggle we as Akaitcho Dene face in negotiating an agreement that will implement our Treaty with the Crown.

On July 25, 1900, the Akaitcho Dene convened at Deninu K’ue, on the south side of Great Slave Lake to meet with representatives of the Crown. The Weledeh people came in canoes from their dozens of villages on the northern shore of the Lake. This great event was re-enacted on July 25, 2000, one hundred years to the day from the Treaty.

That same day, July 25, 2000, the Akaitcho Dene Chiefs, federal Minister of Indian Affairs Robert Nault and Premier Stephen Kakfwi of the GNWT signed a Framework Agreement to establish the basis of negotiations on land and governance issues.

The purpose of the Framework Agreement is to negotiate an agreement that will implement the Treaty made in 1900, a Treaty that the Akaitcho Dene have honoured through the generations.

The Akaitcho Agreement must remain true to the spirit and intent of the 1900 Treaty, and it must above all preserve the rights of Akaitcho Dene to continue to live as Dene in Dene Territory.

The Akaitcho Agreement must ensure that respect will be given to Akaitcho Dene, their lands, economies and traditions in all matters. The Akaitcho Agreement must ensure that Akaitcho Dene and the newcomers to Akaitcho Territory can coexist with honour and mutual respect and to their mutual advantage.

The Akaitcho Agreement must affirm and protect the rights of Akaitcho Dene, not extinguish them.

We are also fortunate in having the very recent Supreme Court of Canada decision in Haida Nation v. British Columbia to clarify the duties of the federal Crown in our negotiations. As Chief Justice McLachlin stated for the unanimous court:

19.   The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of "sharp dealing" (Badger, at para. 41). Thus in Marshall, supra, at para. 4, the majority of this Court supported its interpretation of a treaty by stating that "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship ... ".


20.   Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6. Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. Section 35 represents a promise of rights recognition, and "[i]t is always assumed that the Crown intends to fulfil its promises" (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.

In our case, the Crown and Akaitcho Dene entered into a Treaty in 1900, a Treaty of peace, friendship and coexistence. That Treaty has not been fulfilled.

In the early 1970’s, the Dene of the Northwest Territories, including Akaitcho Dene, went to Court in the case Re Paulette. Mr. Justice Morrow came to the following conclusions:

To sum up my conclusions under the reference:

(1)	I am satisfied that those who signed the caveat are present-day descendants of those distinct Indian groups who, organized in societies and using the land as their forefathers had done for centuries, have since time immemorial used the land embraced by the caveat as theirs.
(2)	I am satisfied that those same indigenous people as mentioned in (1) above are prima facie owners of the lands covered by the caveat -- that they have what is known as aboriginal rights.
(3)	That there exists a clear constitutional obligation on the part of the Canadian government to protect the legal rights of the indigenous peoples in the area covered by the caveat.
(4)	That notwithstanding the language of the two treaties there is sufficient doubt on the facts that aboriginal title was extinguished that such claim for title should be permitted to be put forward by the caveators.
(5)	That the above purported claim for aboriginal rights constitutes an interest in land which can be protected by caveat under the Land Titles Act.

The subsequent appeals that eventually reached the Supreme Court of Canada did not disturb Mr. Justice Morrow’s careful reasons describing the Dene as the prima facie owners of their lands and casting doubt on the conclusion that the 1900 Treaty extinguished the aboriginal title of the Akaitcho Dene.

Those conclusions have only been enhanced by subsequent developments in the law and in our understanding of the historical facts, including the Dene perspective on land, in which the extinguishment of the sacred relationship with the land is literally unthinkable.

From the Akaitcho perspective, the ongoing Akaitcho Negotiations involve giving effect to the essential understanding reached in 1900, but contemporary realities require us to have a formal agreement with the Crown that is much more detailed and specific about the various rights and obligations binding the parties in a relationship of honourable and peaceful coexistence.

We are grateful that the Courts have, at this critical point in our struggle, re-stated the precise legal content of the honour of the Crown, and the consistency in the legal requirements of treaty making and treaty fulfillment. We take heart from the blunt statement made by Chief Justice McLachlin in the Haida case that “Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty.”

In reconciling Akaitcho Dene sovereignty with the Crown’s sovereignty the Treaty of 1900 did not take away Akaitcho Dene sovereignty.

We also take heart from the statement by former Chief Justice Lamer in the 1997 Delgamuukw case on aboriginal title: “Let us face it, we are all here to stay.”

Our ancestors knew this in 1900, when by making Treaty with the Crown’s representatives at Deninu K’ue they agreed to share their beloved Territory and its resources with newcomers. They agreed to coexist with the newcomers. They agreed to a Treaty that reconciled their way of life as Dene with the way of life of the newcomers. They did not agree to cease to be Dene, or to become subjects of someone else’s laws, policies and decisions.

The Akaitcho Dene in 1900 possessed sovereignty, as we today continue to possess sovereignty. Yet they agreed to share the land with another sovereign. That agreement formed a bond that is enduring and permanent. The Treaty did not make one sovereign subservient to the other. It established the principle of the coexistence of equal sovereigns whose duties to each other include mutual respect and the honourable reconciliation of any differences.

Our struggle today, as Treaty people who have never deviated from the original spirit and intent of the 1900 Treaty, is to overcome the amnesia of the Crown. Our elders have carefully passed down the deep meaning of the Treaty to each successive generation. The Crown has not. The Crown permitted ordinary legislation and mere policies to override the Crown’s fundamental obligation to respect the Treaties.

The Crown’s representatives have come to us in the belief that there is only one sovereign, and the policies and rules created to serve that sovereignty must be obeyed.

The Courts have had to remind forgetful Crown officials time and time again that the relationship under a Treaty involves two sovereignties, and that the Crown has obligations of honourable dealing that the Courts will enforce.

And so today we come before this Committee not only to support the Tlicho Nation; we come to remind this Committee of the obligations of the Crown to deal respectfully and honourably with Treaty First Nations.

When we have our opportunity to come before this Committee a few years from now to discuss legislation to give effect to the Akaitcho Agreement we will be seeking amendments to the laws of Canada to give effect to the principles of coexistence that our ancestors acted on in 1900.

We would like to discuss some of the specific issues that we will be raising when it is our turn to have the Akaitcho Agreement given legislative effect.

There are features of the Tlicho Agreement that Akaitcho Dene have adopted. For example, the chapters on eligibility and enrolment have been used as a template for our own proposed chapters. We have tabled an approach to Akaitcho Dene eligibility that follows the Tlicho approach almost to the letter.

However, the Tlicho have agreed to certain things that we cannot accept. A prime example is the idea that the Tlicho Community governments will come under the legislative jurisdiction of the Government of the Northwest Territories. We insist that our villages will come under only Akaitcho laws and jurisdiction.

One of our villages, Ndilo, is situated on only 51.9 acres of land on Latham Island, surrounded by the City of Yellowknife. Another, Dettah, is only 21 kilometers away from Yellowknife but only one and a half kilometers shore to shore from the city of Yellowknife. The other main villages of Deninu K’ue and Lutsel K’e are in areas where resource exploration and extraction activities are increasing.

Unlike less developed parts of the North, Akaitcho Territory is booming with diamond mining and other economic development activity. The non-Dene population of Akaitcho Territory, particularly in Yellowknife, is soaring.

Akaitcho Dene need to be assured that the Akaitcho Agreement will preserve the essential Dene characteristics of the Akaitcho Dene villages. Public government will not satisfy those needs. Our understanding of the Treaty Coexistence principle is that Akaitcho Dene distinctiveness must always be preserved. Dene must be at liberty to continue to live as Dene.

The Tlicho Nation believes that the community government structures they have agreed to will preserve the Tlicho culture and Tlicho control of their communities. We do not question their decision or their judgment on what can best serve their citizens.

However, Akaitcho Dene face a different scale and type of influx of non-Dene. We believe that the governments of Canada and the Northwest Territories would like all Dene villages and other Aboriginal communities to come under some form of public government in which non-Dene would be guaranteed a direct say in the affairs of our villages. We cannot agree to this approach.

We hope to come back before this Standing Committee in due course with some better ideas, ideas that will reflect the true spirit and intent of our Treaty relationship.

Like the Tlicho, we are opposed to many of the assumptions behind the Mackenzie Valley Resource Management Act (“MVRMA”). The Tlicho Nation has agreed to live with that legislation, and they have negotiated hard to secure some amendments that are now before this Standing Committee.

The Akaitcho Dene support the Tlicho Nation in their endeavours. This does not mean that we will be satisfied with similar legislative amendments to the MVRMA. We remain opposed to the idea that the federal Parliament can establish land and resource management regimes without the consent, and the full participation, of Akaitcho Dene.

We do not believe that the MVRMA contains sufficient protections for the existing Treaty rights of Akaitcho Dene. We do not believe that it establishes processes to consult with, and accommodate the Treaty rights of, Akaitcho Dene. We believe we can come up with a better system of land and resource stewardship and management that respects the principle of Treaty Coexistence.

We will be working hard at our negotiation table to come up with a better land and resource management regime for Akaitcho Territory. We have confidence that we will be back before this Standing Committee in due course with a better regime for you to consider.

In summary, we come before this Standing Committee in solidarity with the Tlicho Nation. We ask you to clear the path toward the legislative ratification of their historic Agreement.

We look forward to the opportunity to come back before you to report on the success of our own negotiations.