Good evening, ladies and gentlemen.
Further to our presentation and more specifically to the legislation itself, by settling the specific claims only by payment of moneys and by imposing the release and extinguishment of first nation interests and rights in lands, Bill C-30 will have the effect of extinguishing those interests and rights of first nations. The honour of the crown requires the recognition and the continuance of aboriginal title and rights and treaty rights and demands the replacement and restoration of first nation lands, particularly where such lands were part of the original bargain between Her Majesty the Queen and first nations to reconcile aboriginal title.
In other words, what we're saying in our presentation is that not only should there be compensation if first nations wish to be compensated through monetary means, but the importance is replacement of those lands, that the land is very important and there shouldn't be a continuance of extinguishment of those rights.
On February 6, 2008, the minister advised this committee that the federal government usually doesn't own any land anyway. Usually land is not part of it, he said. However, the 2003 “Resolving Aboriginal Claims” report reveals that of the $1.7 billion and the 3.5 million acres of land in specific claim settlements as of March 31, 2003, the federal government's share was $1.5 billion and 2.5 million acres of land, or 88% in cash and 72% of the total settlement lands. So we say the honour of the crown requires that Bill C-30 be amended to broaden the scope of the tribunal's decisions to include the restoration and the replacement of lands.
The rights and interests of first nations, MKO treaty first nations, in traditional lands and reserve lands also include the cultural, spiritual, social, and economic rights and interests based on our customary law; also the rights and interests arising from aboriginal title, including unresolved aboriginal title, such as air—air is considered an aboriginal title because it was never extinguished—and of course there's that issue with water, as well, that is unresolved treaty business in Manitoba; rights and interests arising from the reconciliation of aboriginal title through the terms of treaties and agreements; rights recognized and affirmed by the Constitution of 1982; beneficial interests under subsection 18(1) of the Indian Act, which are the lands reserved for Indians.
The doctrine of the crown to seek first nation consent is very important when addressing rights in lands and has existed since 1763. It was reflected in the treaty-making process and is reflected in the requirements for surrender under paragraph 39(1)(b) of the Indian Act. First nations hold interests and rights in lands, including those that are recognized and affirmed by section 35 of the Constitution Act of 1982. The courts have established that these rights are held collectively by our first nation communities.
Subclause 21(1) of Bill C-30 represents a prima facie unjustifiable legislative extinguishment of our rights and lands whenever a decision of the tribunal causes the release of all interests and rights to the land unless the citizens of the first nation have first provided their consent to the release and extinguishment of such interest and rights. It is not within the power of Parliament to unilaterally extinguish any of the constitutionally protected rights in lands of first nations without the consent of the holders. And that is our position within the MKO region, that the consent of our people is very important before there is any extinguishment of those rights.
As can also be seen in the specific claims process flow chart, which is appendix B of the December 2006 report of the Senate committee on aboriginal peoples, there is a progression of first nation consent required in the existing specific claims process.
A specific claim can be filed with the minister by a first nation or by a lawyer on behalf of a first nation. A band council resolution is required to accept the minister's offer to negotiate a claim. Consistent with Canada's constitutional doctrine and practice, a membership vote may be required to ratify certain specific claim settlements, particularly if the rights of the first nations are affected by the proposed settlement.
So you can see that throughout history when Canada has dealt with first nations there's been an element of consent, a requisite that people's consent is required before disposition of lands and rights pertaining to land.
The potential for an unjustifiable parliamentary extinguishment of rights in lands through subclause 21(1) of Bill C-30 is not remedied by the voluntary filing by a first nation of a claim with the tribunal. The release of first nation interests and rights in lands can be given effect only after a majority of electors of the first nation provide their consent or assent to the tribunal decision.
That is an important factor and recommendation by MKO, that prior to the filing of the claim to opt for the tribunal there should be a referendum by the first nations to say that they are in agreement to file for the tribunal option.
Also, if it goes through, prior to the decision being rendered by the tribunal they should be seeking that approval by the first nations.
We mention also that there should be consultation with first nations with regard to the whole tribunal process.