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.
Thank you.