Thank you, Mr. Chair.
[Witness speaks in his native language]
In my language I wanted to begin by acknowledging our relationship with the Algonquin people on whose ancestral lands we meet today.
Thank you for the privilege to speak to you about Bill C-30. I am an elected member of the executive of the First Nations Summit in B.C., whose primary mandate is the resolution of the land question through negotiations.
I want to cover a number of areas: the process my colleague just referred to, the development of Bill C-30; standards for assessing first nations and crown relations; some of the provisions of Bill C-30; and then I have a couple of recommendations to make.
For us there is no question about the urgent need for a process independent of the parties to resolve the hundreds of grievances by first nations against the crown, which are commonly referred to as “specific claims”. In fact, a significant number of these claims arise in British Columbia. For example, there are probably in excess of 500 rights-of-way through Indian reserves, with an estimated value of $100 million. I'm not sure anyone has talked about that.
We were in the negotiating room with representatives of the Assembly of First Nations and Canada when the arrangement to proceed to Bill C-30 was agreed to. We saw this on that date as an important development, and certainly with the bill where it is right now we continue to see that as an important development. We welcome the effort and extend our thanks to AFN and to the AFN and Canada joint task force in collaborating to develop Bill C-30.
Standards for developing first nations and crown relations are historical. Even the modern-day pattern of crown conduct relating to first nations' interests is replete with unilateral, arbitrary, and self-serving policies, laws, and practices for and on behalf of the crown in the various interests it represents, including the public interest.
Minister Strahl's submission to this committee on February 6 was optimistic. He made two comments that are relevant here on this bill. He stated that the bill “carefully balances the interests of first nations and all Canadians”. The other point was on the task force that was established to oversee the development of Bill C-30. His overall assessment was that the result will be balanced and fair to everyone.
Given the history of B.C. first nations relations with the crown in negotiations and litigation, our assessment is more guarded. When we have the legal positions and arguments of crown lawyers at the initial establishment in the processes of the tribunal we believe we'll be in a better position to determine the issues of balance and fairness.
We have not seen in our history any instance when the federal crown has ever supported or intervened in support of first nations in any litigation involving aboriginal rights, aboriginal title to lands, territories, and resources, or in disputes with the provincial crown and/or third party interests. This is despite the fact that it has a fiduciary obligation to first nations people.
In fact, in our extensive examination of crown pleadings and legal arguments, the pattern of conduct is always the same: to deny the aboriginal people's existence and force them to prove that they do exist in their aboriginal territories, and to deny the existence of aboriginal rights and aboriginal title, notwithstanding that section 35 of Canada's Constitution recognizes and affirms aboriginal and treaty rights. This pattern must be assessed in light of emerging standards in the courts and internationally.
The courts have set a number of important principles that we think are standards we should judge this against. One is the crown's fiduciary obligation and duties to aboriginal peoples. Second is the honour of the crown not to engage in sharp dealings with aboriginal peoples. Third is the obligation of the crown to conduct negotiations in good faith. Fourth is that where legislation is being developed that concerns or impacts the rights of aboriginal peoples, the courts have made it clear that the consent of the aboriginal people is an important criterion in determining the adequacy of the legal duty of the crown to consult.
Recently, on September 13, the United Nations adopted the Declaration on the Rights of Indigenous Peoples. Article 43 talks about the “minimum standards for the survival, dignity and the well-being of the indigenous peoples of the world”, and that is the intent behind the declaration.
I wanted to briefly touch on preambular paragraphs 6 and 8 in the declaration, as well as articles 27, 29, 30, and 40. These are the declarations that address some of these issues.
Preambular paragraph 6 talks about concern that indigenous peoples have suffered from historic injustices, colonization, and dispossession of their lands, territories, resources. And it goes on.
Article 40:
Indigenous peoples have the right to have access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights.
Article 38:
States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.
One of those ends includes, in article 27:
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and...tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, rights, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
Article 29:
Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, of a just, fair and equitable compensation, for the lands, territories and resources which...have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
And that last sentence is an important one, the notion of “free, prior and informed consent” in matters relating to the use or the taking of lands from indigenous peoples.
Bill C-30 and the joint process through which it was developed goes some distance in meeting the new international standards and those set by the courts.
The first recommendation—and I agree with my colleague, Regional Chief Shawn Atleo—is that this process should be seen as an ongoing new mechanism for engaging first nations people in the development of legislation in the future.
Bill C-30 is an important development. The tribunal will be provided with powers to resolve the many hundreds of specific claims. The bill, however, contains extensive limitations on the crown's liability, risk, and exposure. It contains limitations on the scope of compensation—for example, monetary only, with a cap of $150 million and the ability of the crown to award monetary compensation at its discretion in installments. And fourthly, there are critical limitations on the valuation principles to determine compensation amounts. Is this a barrier to support for the bill? No. I think that this bill will have to be reviewed, once it's approved, in five years to determine the adequacy of the standards that are set within the bill.
There is a big concern around the cap, $150 million. There are communities that will lose the ability to have their claims adjudicated. A good example of that is the Okanagan Band. The recommendation here is that if there is to be some consideration for an amendment to lift the cap, that would be appropriate. If it's not possible to lift the cap, then there needs to be a strong political will and a strong signal from the government that these claims will be dealt with fairly and equitably.
Thank you.