Good afternoon to you all. My name is Luke Hunter. I'm the research director of Nishnawbe Aski Nation. I am very pleased to be able to speak to you on Bill C-30, An Act to establish the Specific Claims Tribunal.
First I would like to provide a brief background on the organization that I represent. The Nishnawbe Aski Nation, or NAN, represents 49 first nations within the territory of the James Bay Treaty and the Ontario portion of Treaty No. 5. The James Bay Treaty, also known as Treaty No. 9, was signed in 1905-06 with adhesions in 1929-30.
The treaty covers two-thirds of Ontario, more than 200,000 square miles, spanning from the height of the land to the James and Hudson's Bays, to the boundary of Quebec to the east and Manitoba on the west boundary.
Matters are complicated with respect to treaty land claims under Treaty No. 9, for two reasons. First, the Province of Ontario was a signatory to the treaty and played a major role in drafting and executing Treaty No. 9. This is the only numbered treaty in Canada, of 11 in all between 1871 and 1930, to have had full participation of the provincial government in the drawing up of its terms and negotiations with the first nations.
I want to begin by quoting a recent court case that involved a first nation and a resource development company. It was a dispute over lands and resources.
Paragraphs 79 and 80 of Mr. Justice G. P. Smith's reasons for judgment, on July 28, 2006, commented on the special relationship that first nations have with the land in awarding an injunction in favour of a first nations community known as Kitchenuhmaykoosib Inninuwug, commonly referred to as KI.
The quote is:
Irreparable harm may be caused to KI not only because it may lose a valuable tract of land in the resolution of its TLE claim, but also, and more importantly, because it may lose land that is important from a cultural and spiritual perspective. No award of damages could possibly compensate KI for this loss.
It is critical to consider the nature of the potential loss from an Aboriginal perspective. From that perspective, the relationship that Aboriginal peoples have with the land cannot be understated. The land is the very essence of their being. It is their very heart and soul. No amount of money can compensate for its loss. Aboriginal identity, spirituality, laws, traditions, culture, and rights are connected to and arise from the relationship to this land. This is a perspective that is foreign to and often difficult to understand from an non-Aboriginal viewpoint.
Many of NAN's claims arise from the manner in which the treaty was made. The reserve provision of the treaty, for example, was understood in tandem with the belief that harvesting in the traditional territories would not be interfered with. Will the tribunal take into account the oral history surrounding the making of the treaty and the verbal promises made by the treaty commissioners?
The proposed tribunal seems best suited to address the current problems that the government is experiencing, i.e. the backlog in resolving land claims, rather than addressing the first nation's concerns. The proposed tribunal cannot address that many of NAN's claims stem from the making of the treaty itself, which are confirmed by the oral history and the recorded promises contained in the diaries of the treaty commissioners.
The tribunal will only deal with issues involving matters that arise from the Indian Act, such as failures of the federal government regarding the administration and management of lands and other first nations assets, including trust funds and breaches of the Indian Act. Some of these examples include land expropriation, illegal surrenders, road and railroad corridors, timber, and other band assets.
The tribunal cannot address claims where the province arbitrarily amended reserve boundaries in the post-treaty years as a result of the third party interests, or the creation of provincial parks or federal parks wholly encompassing reserves, despite the promise that first nations could continue to live as they and their forefathers had done.
Since 2001 NAN has begun researching treaty land entitlement claims that involve land, and therefore Ontario's involvement to resolve them. How will this proposed tribunal help NAN, since Ontario does not have to be a party and can choose to ignore the tribunal altogether?
The Ipperwash inquiry in Ontario recommended the creation of a commission of Ontario that would assist Canada, Ontario, and first nations to negotiate settlements and land claims. How will Canada work with Ontario to ensure that the federal specific claims process, the tribunal, and the TCO commission of Ontario work together?
There is no mention in the proposed Specific Claims Tribunal Act of how first nations are to be funded in order to appear before the tribunal. Will first nations receive funding to bring claims to the tribunal?
It is a concern that the tribunal will make orders of costs. An example is in subclause 12(3) of the bill. It states that:
The Tribunal’s rules respecting costs shall accord with the rules of the Federal Court, with any modifications that the Tribunal considers appropriate.
Costs generally flow from the event, meaning that the losing party pays the costs of the winning party. Will first nations have to pay Canada's costs if the tribunal rules against their claim?
The current draft bill also assumes that once a tribunal makes a decision the claim is settled once and for all; therefore, if a claim involves land issues, Canada's legal obligation is discharged and released at the time of the tribunal decision. In essence, it has the same effect as an extinguishment policy inherited in the current specific claims policy. No first nation will ever agree to take a specific claim to a tribunal involving land. When the Government of Canada appeared before this committee it made references to first nations purchasing land using settlement moneys from a third party interest, and those lands could be converted to reserve lands. There is no mechanism in this bill for this to happen other than the political accord that was signed between the minister and the AFN.
These are my comments to the draft bill. l've raised some serious issues and shortcomings of the proposed legislation.
Thank you.