Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 54 - Evidence
OTTAWA, Thursday, February 11, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-57, to amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other Acts in consequence, met this day at 11:02 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Before us this morning are Mr. Jerome Denechezhe, representing the Northlands First Nation; Mr. Michael Anderson, Research Director for the Manitoba Keewatinowi Okimakanak Inc., Natural Resources Secretariat; and Mr. Jeff Bussidor of the Sayisi Dene Nation.
Grand Chief Frances Flett has, unfortunately, been storm stayed in northern Manitoba and cannot make it here today.
Since this is the first time that some of our witnesses have appeared before a Senate committee, perhaps I will tell you a little about the room in which we are meeting today. This room was designed for the first summit conference in the 1912 wing of the East Block. I can assure you that this wonderful table and the beautiful chandelier are not normal furnishings for a Senate committee room. When the restoration of the building took place, it was decided that this room should remain as it was designed, that is, to accommodate the multiple translation services required for the summit conference. It is always a pleasure to be in this historic building and, particularly, this room.
Please proceed with your presentation and then we will have questions.
Chief Jerome Denechezhe, Northlands First Nation, Chairman, Manitoba Keewatinowi Okimakanak Inc.: Since Grand Chief Frances Flett cannot be not here to make this presentation as chief of Northlands First Nation, I will make the presentation on his behalf. I am the chairman of Manitoba Keewatinowi Okimakanak Inc. Mr. Anderson will assist me in the presentation and he will then be happy to respond to any questions you may have.
The following is the presentation of Grand Chief Frances Flett of the Manitoba Keewatinowi Okimakanak, Inc. respecting Bill C-57.
On behalf of the 26 Manitoba Keewatinowi Okimakanak First Nations, and in support of the Sayisi Dene Nation and the Northlands First Nation, I have come before the Standing Senate Committee on Legal and Constitutional Affairs to inform you that the Government of Canada is attempting to extinguish the aboriginal and treaty rights of the Sayisi Dene Nation and the Northlands First Nation north of the 60th parallel in order to pave the way for the Nunavut Settlement Agreement and the proposed Government of Nunavut.
It is the position of the Minister of Indian Affairs and Northern Development, as stated in her letter to me in August, 1998, that "the Dene do not have Treaty rights north of the 60th parallel." It is also the position of the minister that any recognition by the minister and her government of the section 35 rights of the Sayisi Dene Nation and the Northlands First Nation north of 60 will depend on the outcome of the Samuel v. The Queen case which is currently before the Federal Court of Canada.
Canada has taken this position in order to justify the imposition of the Nunavut settlement area boundary upon the Manitoba Denesuline. This boundary included almost half of the traditional territories of the Sayisi Dene Nation and the Northlands First Nation. The traditional territories of these two First Nations are known in their language as "Denesuline Nene." That part of the Denesuline Nene is what is now the Southwest Keewatin District of the Northwest Territories and has been subject to the continuing use, occupancy and habitation of the Manitoban Denesuline for at least the past 2,600 years.
Canada ignored the aboriginal title and the aboriginal and treaty rights of the Manitoba Denesuline in setting this boundary which artificially divides Denesuline Nene. It is also clear that Canada ignored the tests of aboriginal titles set down by the courts in Calder, Baker Lake and Delgamuukw when Canada included all the Denesuline land north of the 60th parallel within the Nunavut comprehensive land claim area.
At the time the Northlands First Nation entered into Treaty No. 10 and the Sayisi Dene Nation entered into Treaty No. 5, the Manitoban Denesuline continued to use, occupy and inhabit all of the Denesuline Nene north of the 60th parallel. On behalf of Her Majesty, the treaty negotiators promised the Manitoba Denesuline that they would have the right to continue hunting, fishing and trapping throughout all their traditional lands, as if they had never entered into that treaty. The treaty negotiators also promised the Manitoba Denesuline that they would have the right to select reserves of land within their traditional territories, including the part of Denesuline Nene north of the 60th parallel.
Contrary to the doctrine established by the Supreme Court of Canada, the minister and her predecessors have not interpreted the terms of treaty in a liberal manner and in a manner that would have been naturally understood by the Manitoba Denesuline at the time they entered into the treaty. Instead, the minister and her predecessors have chosen to break the solemn promises made on behalf of Her Majesty and to deny the Manitoba Denesuline any meaningful opportunity to ensure that their understanding of the treaty promises were taken into account during the time that the Nunavut Comprehensive Land Claim Agreement was being negotiated. In so doing, the minister and her predecessors have swept aside Canada's pre-existing treaty relationship with the Manitoba Denesuline and have violated Canada's fiduciary obligation to the Manitoba Denesuline.
Despite the considerable efforts and numerous efforts of the Manitoba Denesuline to discuss and negotiate these issues with Canada, the minister and her predecessors have taken the position that these matters can only be resolved through the courts. In addition, the minister and her predecessors have refused to defer any matter in dispute that is related to the comprehensive land claim of the Inuit of Nunavut until these matters have been resolved by the courts. Nothing less than the "honour of the Crown" is at stake in this dispute.
The MKO First Nations support the self determination of the Inuit of Nunavut in their own lands and over their own people, lands and resources. However, the Nunavut Settlement Agreement and the provisions of the Nunavut Act, as they now exist, will infringe upon the Constitutional rights and the traditional territories of the Manitoba Denesuline.
It is for these reasons that I come before you, honourable senators: to ensure that the honour of the Crown is upheld; to ensure that the constitutionally protected rights of the Manitoba Denesuline are recognized and affirmed within the Nunavut settlement area; and to ensure that these rights will be recognized and affirmed by the proposed Government of Nunavut and by the proposed Nunavut Court of Justice.
Therefore, honourable senators, I ask that you amend Bill C-57 to ensure that the proposed Nunavut Court of Justice shall not have the jurisdiction to deal with any matter in dispute between the Manitoba Denesuline and Canada. In particular, I am requesting that you amend Bill C-57 to ensure that the proposed Nunavut Court of Justice shall not have jurisdiction to deal with any matter that is set out in the statement of claim of the Manitoba Denesuline in Samuel v. The Queen, at least until this case has been decided by the court. I request that you amend Bill C-57 to require that Canada refer the issues in Samuel v. The Queen to the Supreme Court of Canada for determination.
On behalf of the 26 treaty First Nations of the Manitoba Keewatinowi Okimakanak, I also ask that you ensure that the promises made to the Sayisi Dene Nation and the Northlands First Nation on behalf of Her Majesty are fulfilled by Canada and, in so doing, that the honour of the Crown is upheld.
The Chairman: Thank you Mr. Denechezhe.
I see you with some overheads, Mr. Anderson. Have you something to ad?
Mr. Michael Anderson, Research Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.: I do, madam chair. I have been asked to briefly do a location reference for the written submission that was circulated and for the presentation.
The first slide depicts a map of the Nunavut territory that was included with an article in the Canadian Geographic magazine. Canadian Geographic recognized the dispute over the lands at the bottom edge of the Nunavut territory between Manitoba and the Northwest Territories and made referred to it in the article.
This territory comprises less than 5 per cent of Nunavut, approximately 80,000 square kilometres of land. While it may seem small in relation to Nunavut, it is very large in relation to the Denesuline of Manitoba. The area covers approximately one half of the traditional territory under current use and occupancy of the Manitoba Denesuline as developed through land use research conducted by both communities and by the Natural Resources Secretariat.
The green line sets out the Nunavut settlement boundary and the hatch lines are the Northwest Territories, Saskatchewan and Manitoba boundary. You can also see the Hudson Bay coast. We can see that the Nunavut settlement area boundary basically cuts Denesuline Nene in half; that is, that portion of Denesuline Nene that is used by the Manitoba Dene. There are also Denesuline nations in Saskatchewan. Together, they are all of the Denesuline nations.
The dispute in Samuel v. The Queen that is before the Federal Court deals primarily with the area disputed by the Manitoba Denesuline. The interest of Dene in this land is quite well known. As far back as 1987, during the actual Nunavut negotiations, there was a proposal made by the Dene Métis of the Northwest Territories with respect to the boundary division between what would become Denendeh, the western territory, and Nunavut, the eastern territory.
As you can see, that boundary included the disputed area. It was being recommended by the Dene of the Northwest Territories that that portion of Denesuline Nene immediately north of the 60th parallel should be included within Denendeh, the territory of the Western Arctic. However, because of political expediency and other issues, the Government of Canada unilaterally imposed this boundary in 1992. The government actually presented an issue for a boundary commissioner to examine these issues. We touch on that in our presentation.
When the boundary was being established, even though the minister was quite aware of the concerns of the Manitoba Denesuline over this area, the boundary commissioner, who was a former commissioner of the Northwest Territories, John Parker, was actually instructed not to consider the boundary issue of the Manitoba Denesuline and the Saskatchewan Denesuline. Despite and notwithstanding those directions from the minister, we assembled our preliminary land use research information, flew to Yellowknife and met with Mr. Parker. Members of both communities and the Saskatchewan Dene met with Mr. Parker to explain that this was a serious issue. Mr. Parker requested an amendment to his terms of reference, which was denied. Notwithstanding that, in his final report he recommended that this matter be addressed in some way, although it was not within his mandate to make a specific recommendation on whether the boundary of Nunavut should follow this northerly edge of Denesuline territory.
In the end, the boundary was imposed by the minister over the objections of the Saskatchewan and Manitoba Denesuline. You can see their combined territory north of 60 on the map. You can also see the Nunavut territorial boundaries with Saskatchewan, Manitoba, and the western end of the NWT. The green boundary went through a fair bit of Saskatchewan territory as well as Manitoba Denesuline.
The Government of Canada entered into a treaty with the Northlands First Nation and the Sayisi Dene Nation covering all of their traditional lands in 1907 and 1910. As Chief Denechezhe indicated, the Crown promised that the Dene could continue to exercise their rights to hunt, fish and trap throughout their traditional territories and select reserves of lands within these territories.
It is clear from correspondence that was generated between Canada and the Treaty and Aboriginal Rights Research Centre in Manitoba that, in 1989, the government decided to take the position that treaty rights only applied to the defined metes and bounds of treaty and, therefore, in the cases of both Treaty 10 and Treaty 5, there were no treaty rights north of the 60th parallel. It was, essentially, a policy decision on behalf of the department.
There is considerable dispute about this policy decision. There is correspondence from the former director of Lands and Trust Services in Manitoba and from the department's own senior treaty researchers, all saying that, if the Dene had been told at the time of signing of the treaty that rights would not apply north of the 60th parallel, they most assuredly would not have signed the treaty.
Senator Moore: Was that the Northlands treaty, or the Dene treaty?
Mr. Anderson: Northlands Treaty 10.
Senator Moore: Was that signed in 1907?
Mr. Anderson: On August 19, 1907, the Northlands First Nation entered into Treaty 10. On August 1, 1910, the Sayisi Dene Nation also entered into a treaty.
Canada has pre-existing constitutional commitments to the Sayisi Dene Nation and the Northlands First Nation. The practical effect of this position of the Government of Canada with respect to the application of treaty rights can be seen starkly in this particular image. This is a map showing only the traditional land use area of the Northlands First Nation. The defined metes and bounds of Treaty 10; that is, the specific territory identified in the text of the treaty, is in Saskatchewan. It ends at the Saskatchewan-Manitoba border. If the minister's position and that of the deputy attorney general as presented in Samuel v. The Queen is correct, the treaty rights of the Northlands First Nation apply only to what is shown as the yellow sliver of northeast Saskatchewan. That is the realistic effect of the legal position presented by the minister and her government to the Federal Court.
It is clear that such an interpretation of treaty simply cannot stand. That is because if the minister's position is what was intended at the time, Denesuline would have, literally, committed cultural suicide, because all of the caribou crossing sites and main calving lands are north at the edge of the tree line. Those are the critical areas for hunting caribou. In fact, the notes of the treaty commissioners recognized that things had to be sped up because Denesuline wanted to go back out to their hunting camps.
What is interesting is that Treaty 10 was signed at Brochet, at the north end of Reindeer Lake in Manitoba, outside the metes and bounds of Treaty 10. The reserve for the Northlands First Nation at Lac Brochet is in Manitoba, outside the metes and bounds of Treaty 10.
We can find no application in any other instance where the Government of Canada has confined treaty rights to within the defined metes and bounds of treaty, such that they mean that, when a Dene steps over the border of the Northwest Territories he becomes an ordinary Canadian and is no longer a treaty First Nation person, although he remains within his traditional territory. At the time of the signing of the treaty, it was traditional territory.
This created application of federal policy has another impact as well in that, when the treaty was signed, in addition to the rights to hunt, trap and fish throughout all their traditional lands, there were also solemn promises, as Chief Denechezhe said, to select reserves of lands. The government is saying that the Dene cannot select lands north of 60. The practical collision of the Nunavut Settlement Agreement and the pre-existing treaty commitments on the part of the Crown can be seen on the map which is the next slide.
The blue hatched areas indicate Inuit fee simple lands that are schedules within the Nunavut Settlement Agreement. The red dots indicate the treaty land entitlement selections that had been made as of the date of the fee simple land selections. The interests of the Inuit in establishing fee simple lands, based on Canada's position that there are no rights north of 60, from Canada's perspective, removed this legal complication. They proceeded with selection of fee simple lands on behalf of the Inuit of Nunavut and concluded the Nunavut Settlement Agreement knowing that the Dene of Manitoba had already expressed an interest in selecting sites within what would become Nunavut. This was a selection of reserves of land on sites that were overlapped by Inuit fee simple lands. In other words, instead of ensuring that the treaty rights of the province and of the Crown in Treaty 10 and Treaty 5 were upheld prior to the Inuit selecting fee simple lands as part of their settlement arrangement, Canada indicated that the Dene had no rights, therefore there was no problem, and the Nunavut agreement proceeded. That is outlined in the summary contained in the first passage of Chief Denechezhe's presentation. The government has, effectively, unilaterally interpreted treaty and taken steps to, in effect, extinguish the treaty and aboriginal rights of the Northlands and Sayisi Dene nations in order to draft a boundary for political purposes, recognizing it was not what was being presented by the Dene themselves; and to ensure that the land selections under the Nunavut Settlement Agreement negotiations process could proceed without legal complication.
All of these issues were presented to the Commons committee on Aboriginal Affairs on February 4, 1993. The Commons committee was so moved by the information that we are presenting to you that they asked the minister to defer signing the Nunavut Settlement Agreement until some resolution could be arrived at. The specific request was to defer signing the agreement until the minister appeared before the committee and responded to this information.
On March 10, 1993, it was the position of the minister that the matter could only be resolved before the courts. The Commons committee asked the minister if there was some way that this could be dealt with. The minister replied, "Before the courts." As you may be aware, the Indian Claims Commission recently accepted a review of this very situation on behalf of the Saskatchewan Denesuline. It was being actively opposed by Justice and ministers' offices who were arguing that the Indian Claims Commission had no jurisdiction to consider this issue. The Commons committee was interested in deferring further progress on the Nunavut Settlement Agreement until the Indian Claims Commission concluded its deliberations and filed its report, which it did in December of 1993. It indicated that the Denesuline of Saskatchewan have treaty rights north of 60.
Thus, the current position of the minister is contrary to the treaty and the historic land use of the Denesuline which is well recorded by ethno historians and extends back at least 2,600 years, as recorded by Thomas Hearne in his travels for the Prince of Wales. The position also runs against the findings of the Indian Claims Commission.
We are in the situation where, on the eve of the creation of the new government of Nunavut, we are in court in Samuel v. The Queen. It is our firm view that we will be successful in this action.
It is important that all of the legislation that is being aimed at establishing the new government of Nunavut be established on a correct constitutional foundation. Presently, there are colliding section 35 rights, at least in the southern Nunavut territory. By leaving them this way, it means that virtually every single decision that will be made by the new agencies of the public government of Nunavut will be challenged in the courts.
We are also before the Federal Court regarding an archaeological permit that we have requested for Ennadai Lake. The Dene have selected this as part of the treaty land selection. We made numerous proposals to have an archaeologist investigate these sites, partly to develop evidence for the Samuel case, but also to satisfy the genuine and very personal interests of the First Nations membership in both communities. All of this has created intense interest in their heritage, territory, and the treaty. The Inuit Heritage Trust objected to all the permits under the terms of Article 33 of the Nunavut Settlement Agreement. It was only after counsel for the Manitoba Denesuline contacted the Northern Heritage Centre, which is the agent of the Commissioner of the Northwest Territories in the new legislation, that all the permits but one were issued. The one denied is at Ennadai Lake.
Under the terms of Article 33.5.6 of the Nunavut Settlement Agreement, if the Inuit Heritage Trust objects to accessing an archaeological site because they believe it will disturb burial sites of importance to the Inuit, or if those who are conducting the exploration program do not make a reasonable effort to involve the Inuit directly in the activity, that is, if there are benefits accruing to the Inuit from the physical work, it says that the designated agency "shall deny the permit." What is interesting about this is that the designated agency under Article 33.1 of the Nunavut Settlement Agreement includes the Minister of Indian Affairs and Northern Development and the Minister of Canadian Heritage. The agreement actually fetters ministers of the federal Crown in conducting their discretionary investigations.
If we appeal to the Minister of Indian Affairs and Northern Development, or the minister of any federal agency responsible, as long as the Inuit Heritage Trust objects on those two grounds, those departments shall refuse the permit, which means that the Denesuline of Manitoba are already facing loss of access to their own sacred, cultural and burial locations.
If you look at the Nunavut Settlement Agreement as a treaty, which is what it is, the public government of Nunavut will be in the unique situation in which those who are part of the public government of Nunavut will be interpreting their own treaty and passing laws to enforce it. I have to say that is something in which, clearly, First Nations are also interested. It is to have true self-determination within First Nations territory.
The issue in our view is that this is not Nunavut; this is Denesuline Nene. These considerable powers and authorities have been extended into Denesuline. It is not just a change in name. It is not changing the legislation from the Northwest Territories to Nunavut. The Nunavut government will contain many agencies within it that are actually created under the Nunavut Settlement Agreement and therefore constitutionally protected under what was Bill C-133, the Nunavut Implementation Act. This is not a territory. This is not a province. It is neither fish for foul, it is something in between.
We come before you, honourable senators, because it is critical that all of the legislation that is established to create this government recognizes these constitutional collisions of rights. It must recognize these unique powers in such a way that all of this is clarified prior to the government setting up its public government functions. These are not matters to be left to be sorted out later.
Another concern relates to court cases between the Nunavut Tunngavik and the federal Minister of Fisheries and Oceans regarding turbot quotas. Article 15 of the Nunavut Settlement Agreement states that government shall seek the advice of the Nunavut Wildlife Management Board when dealing with wildlife matters, and wildlife is defined as including plants, fish and animals.
The Nunavut Wildlife Management Board provided advice on turbot quotas in areas beyond the Nunavut settlement area, but the minister set the quotas without considering the advice of the Wildlife Management Board. The specific advice was not reflected in the minister's decision on the quotas. The Nunavut Tunngavik took the minister to Federal Court, which agreed that the minister was bound to consider the advice, and not only bound to consider it but bound to act on it, so his decisions had to reflect the advice of the Nunavut Wildlife Management Board. The Crown, of course, appealed it to the Federal Court of Appeal, which found in favour of Nunavut Tunngavik.
We can see -- and not surprisingly -- that Nunavut Tunngavik intends to enforce its agreement, to interpret it, and when it becomes public government, it will be in a position, through its members in the elected legislature, to pass laws to implement the treaty.
We already have examples of that. Issues related to the rights of the Denesuline and Denesuline Nene are critical because the Nunavut Wildlife Management Board sets quotas with a priority for the Inuit of Nunavut. It writes regulations and, if the Denesuline of Manitoba are classed and viewed by Canada and the Inuit of Nunavut as ordinary Canadians, then these regulations will apply in full to the Denesuline of Manitoba with no the special consideration of priority and limits that the Supreme Court of Canada established in the doctrine in R. v. Sparrow and, subsequently, in R. v. Badger and Delgamuukw, the entire constitutional framework of case law that protects the rights and priorities of First Nations people.
It is the current position of the minister that, because section 35(1) rights do not apply north of the 60th parallel, the whole wave of case law, all those definitions and redefinitions and reinterpretations by the Supreme Court, will not protect the interests of the Dene north of 60 unless this is resolved.
I do not think that was at all what was intended when the treaty commission went to Lac Brochet, Brochet and to Churchill. The promises were clearly that the people could hunt, fish and trap throughout all of their traditional territory as if the treaty was never signed, and they could select reserves of land in exchange for surrendering to Her Majesty their territory.
My final comment relates to the matter of legal surrender. The position of the Government of Canada has one other critical point, if the government sticks to it. There are four arguments we would analyze. The first one is that the Dene committed cultural suicide. We know from the treaty commission that one chief resisted signing the treaty for several days to secure guarantees of hunting. That is in the record; we know that happened. We therefore know that it was not their intent to cut the people off from their hunting lands. If this is the effect of the treaty, Dene either committed cultural suicide, or the government was guilty of sharp dealing and intended to steal the land of the Dene and give nothing in return. Very few courts in Canada would like the prospect of setting precedent on that issue.
The third argument would be that rights apply fully throughout all the traditional territory affected by treaty.
However, there is one interesting fourth extension, and that is that, if the Government of Canada only intended to surrender the lands of the Denesuline to this boundary, it means there is an unresolved aboriginal title claim north of the 60th parallel which creates an additional group of unresolved section 35 rights.
It is reasonable to say that the position of the government is that there remains an unresolved aboriginal title claim. In our view, the test of title established by Calder, Baker Lake and Delgamuukw were simply not met in this case by the ethnohistoric evidence. The Inuit of the Nunavut were unable to establish occupancy of this territory as demanded by the Supreme Court. The government established a nice, neat, tidy political boundary between Manitoba, Saskatchewan, the Western Arctic and Nunavut. It does not reflect land use or occupancy.
B.C. First Nations have contacted us about this. They are very concerned, of course, because they have multiple overlaps there, and have expressed alarm to us -- I do not wish to speak for them but merely report what they shared with us -- about Canada imposing settlement on overlapping issues between nations. Even Canada's comprehensive claims policy specifically says that, where there is an overlap in dispute, there will be no resolution until the dispute is resolved, but even this was set aside.
We have attached several maps to our brief. They are replicas of the maps I used. In the centre is a table providing a summary of some of the sites and physical territory being used. Attached to the submission is our amended Statement of Claim in Samuel. It relates to our specific recommendation that the Nunavut Act, Bill C-57, be amended to require that Canada shall refer to the Supreme Court of Canada the matter of the claim presently being advanced for and on behalf of the Sayisi Dene First Nation, that being the Samuel case, to get this resolved. In addition, and more important, in the section identified, we recommend that any proceedings before the Nunavut Court of Justice which involve any Dene Denesuline of Manitoba claiming as a defence any matter set out in the claim presently being advanced, that is the Samuel case, shall be stayed pending the decision of the Supreme Court of Canada with respect to the references provided.
Senator Moore: How big is the area in dispute in square kilometres?
Mr. Anderson: About 80,000 square kilometres. Some work was done by Commons counsel on redrafting and providing section numbers. I could provide you with that reference. We have a specific recommendation related to the clause of Bill C-57 that should be amended.
Essentially, that is the issue, senators.
The Chairman: Thank you very much Mr. Anderson. Have you anything to add, Mr. Bussidor?
Chief Geoff Bussidor, Sayisi Dene Nation, Manitoba Keewatinowi Okimakanak Inc.: Yes. There are a couple of things I want to add. Mr. Anderson mentioned Virginia Petch's archaeological dig in barren lands up there. They had a person from Arviat as well, a youth, so there was equal representation, and they learned from each other out on the land. That was a good thing.
Another thing that I wanted to add is that when the Dene signed their treaty in 1910, we were still in the Keewatin area two years later, in 1912, the year this room was built. They moved it to the 60th parallel there.
The Chairman: Thank you. We will now proceed to questions.
Senator Beaudoin: You have raised at the same time a political question and a legal question. If I understand your point of view, you want the political question to be stayed for a certain time, until the courts have ruled on this question. If I understand what you said, it is that section 35 of the Constitution Act of 1982 does not apply after the 60th parallel. That is the first time I have heard that argument. I should like to know what the Supreme Court would say about that, because in section 35, there is no distinction. Treaty rights are protected by the Constitution. This bill is not going to change the geography in itself. It will create a new territory. Obviously, the Parliament of Canada has the right to create a new territory. On this, I have no doubt.
The Parliament of Canada does not have the right to set aside section 35 if section 35 applies. Suppose you win in the courts and the territory comes into force in April. You will still benefit. Your rights are still there and will be there forever. It is eternal.
Senator Nolin: Yes, unless you revoke those rights by your agreement. However, it is not your intent to change your rights, so the court will settle that.
Senator Beaudoin: Your treaty rights are there forever. That is my thesis.
Why are you coming here, at this time, for an amendment to a bill that has not already been passed? We may amend the bill -- there is no doubt about that -- but the territory has not yet been established. It is to be established. You say, "You should not do that. Delay the whole thing until the Supreme Court has rendered a ruling." I understand that, and I understand your reaction, but I cannot see how you can lose your treaty rights if you have those treaty rights, and only the Supreme Court can decide whether or not you have them. It is one thing for the government to say that after the 60th parallel line there are no treaty rights. I do not know about that, because this is the first time I have heard about it. However, if that is the case, the court will decide that. You will not lose any treaty rights in that sense.
Perhaps you have another objection. You do not want a new territory to be created before you are quite sure that you will retain those rights. In my opinion, however, you will not lose anything.
Senator Andreychuk: This bill does not have anything to do with settling the land. That is the Nunavut Act.
Senator Beaudoin: We have two big territories. With Nunavut, there will be three big territories. I cannot see how your rights will be affected by that. Your rights are enshrined in the Constitution. Unless you say to me that, politically, you do not want that boundary to be established where the government would like to put it -- I should like to know more about that.
Mr. Anderson: I am pleased that you put it in that light because you raised several things that would be helpful.
First, with respect to the existence of the treaty rights north of the 60th parallel, it is clearly the position of the Manitoba Denesuline that they do exist and are protected by section 35(1) of the Constitution Act, 1982. That is our position.
Senator Beaudoin: The court will decide whether or not that is true.
Mr. Anderson: That is what we are seeking. On page 3 of the written submission, at the very bottom bullet, I cite the reference from the Statement of Defence filed by the Attorney General of Canada with respect to these rights. It states:
Insofar as the (Manitoba Denesuline) or any of them use and occupy land north of the 60th parallel of latitude for the purpose of hunting, trapping or fishing, then the said Indians do not do so as of right, but instead under licence of the Crown, express or implied. In the premises, any such supposed rights to hunt, trap and fish aforesaid exist at the sufferance of the Crown.
That is the Attorney General's position on treaty rights north of 60. In a letter that was sent to the grand chief dated August 21, 1998, Minister Stewart put it more succinctly. It also relates to the fact that the court will determine. Minister Stewart writes to the Grand Chief that in her January 7, 1998 letter she outlined Canada's position in litigation, which was that the Dene do not have treaty rights north of the 60th parallel. However, she acknowledged that, should the court find that the First Nations have rights as claimed north of the 60th parallel, section 40 of the Nunavut final agreement specifically states that existing treaty rights and aboriginal rights of other aboriginal groups are protected within the Nunavut settlement area.
The key to both of these references is the word "should." At the present time, we are looking at a government establishing regulations and laws on its current understanding of the treaty rights in the Manitoba Denesuline, who are using territory lands and resources in the Northwest Territories and will continue to do so after the creation of Nunavut on April 1. The problem is that, as the wildlife managers, planners and others create regulations, quotas and other issues, their application to the Denesuline Manitoba, in their mind, will be as to any ordinary Canadian. They will not be considering a difference in their means of establishing quotas because the Supreme Court, in Sparrow, indicates essentially in previous summary that, where there is a right, there is a priority. The Nunavut Settlement Agreement clearly makes a presumption of priority for the Inuit of Nunavut over wildlife quotas, but there is a pre-existing treaty priority established already recognized by the Supreme Court in the Sparrow case.
Our concern is not to delay everything with respect to our specific appearance before this committee today. Our concern is that Bill C-57 be amended to include section 573.3 (1), that essentially any proceedings before the Nunavut Court of Justice that deal with this collision of rights be stayed pending the outcome of the court determination on the existence of these rights.
In this particular request, we are not suggesting that everything stop. We are suggesting that the Nunavut Court of Justice not have jurisdiction until the outcome of this determination is made to deal with rights, for example, the hunting rights of the Denesuline, and fishing rights, et cetera. Everything that the Attorney General of Canada says are supposed rights we want confirmed and recognized prior to the Nunavut Court of Justice having any jurisdiction to deal with it. In our view, they will be improperly considering the constitutional rights of Denesuline in the Nunavut courts under the current definition of "law."
Senator Beaudoin: The court will exist on April 1. Let us imagine there is an appeal from that court. How can you say in the bill, "You are Nunavut; you have a judicial system, a court system that looks all right, but you will not have jurisdiction because you are in a conflict of interest because you are for Nunavut?" You may appeal the decision to the court of appeal in Alberta. You may also appeal to the Supreme Court of Canada. The Supreme Court of Canada is all over Canada.
The fact is that either the argument is good or it is not for the 60th parallel. Whether it is in the Northwest Territories or in Nunavut, you have the same rights. The creation of the new territory does not change your treaty rights -- that is, as far as I can tell.
Mr. Anderson: One of the issues that is important to examine is that the NWT is federal territory for which a legislative structure has been established to provide services of public government on behalf of the federal Crown. Essentially, that is what it is. However, the Nunavut government will not be like that. There are provisions respecting the public government of Nunavut that cannot be terminated by any minister of the Crown because they are protected constitutionally in this settlement agreement. It will be a very different form of government, and it is something that many people have been looking at recently. The Nunavut Wildlife Management Board is an agency of public government and it is protected specifically under the Federal Implementation Act. There is also the heritage trust. Bill C-62 has two more boards that will be coming before this committee soon. There is another bill in the house dealing with two more amendments to the Nunavut Act establishing two more boards.
The distinction is that the Nunavut government will be a very different government from that of the NWT in that a Nunavut government will stand on a treaty. There are constitutional provisions. As I understand the discussions about the difference between provinces and territories, the prime distinction is that provinces have their legislative powers, constitutionally identified. This territory has a fair bit of its authority constitutionally identified. In our view, it is far more akin to a province than a territory. However, we are not here to debate that so much as to indicate that, under the current situation in the NWT, notwithstanding the formal position of the minister and the Attorney General in Samuel, the government of the NWT does not enforce its requirements for licenses, et cetera, with respect to the Manitoba Denesuline. No one has been charged with the offence of hunting without a licence. We do not expect that will be the case after April 1. With the court cases that I have indicated, it is clear that the new agencies and the Nunavut public government quite understandably are exerting their authority in the Inuit Heritage Trust in denying permits to us and the struggle between the Minister of Fisheries and the Nunavut Wildlife Management Board.
Senator Beaudoin: The fact is that the powers of the provinces are embedded in the Constitution, as are the powers of the federal authority. The powers of the territories flow from the Parliament of Canada. It is a delegated power.
Mr. Anderson: That is not the case any more. With respect, this agreement has created a new government structure. Parliament cannot take these away.
Senator Beaudoin: The third order of government in section 35 makes for a fascinating debate. However, the court has never said that there is such a thing. Perhaps they will say that, I do not know. Thus far, they have not said that. We have two theses. One is that section 35 includes a third order of government. Another thesis is that, no, section 35 sets out collective rights for the aboriginal nations and people.
As long as the Supreme Court has not ruled on this, and they have not so far, we may debate each side of the issue. We apply constitutional law as it is. I agree that the Supreme Court will say what constitutional law is, but they have not said that so far.
The fact is that the powers of the territories are delegated by the federal authority. If your theory of a third order of government is accepted by the Supreme Court, and it may well be, then that would be a different situation. If we have to vote on a bill, my first reaction, right or wrong, is that they have the power to create a third territory with the powers that they want to delegate to it. They cannot, however -- and I agree with you -- encroach on any of your treaty rights. Obviously, that would be unconstitutional. That is not a question of boundary but a question of treaty rights.
Senator Nolin: Your treaty rights will not be encroached even by a quasi-province, which is what you are suggesting. Nunavut is more than a territory but less than a province. Even a province cannot encroach on your rights. If they do, then you must go to court. If you do not agree with the decision, then you appeal it. At the end of the day, you will have to appear before the Supreme Court and they will decide. Your rights are there. No one will change that. Even if we wanted to do that, we cannot. Agreeing to change your rights is something else. However, I do not think you will do that.
Mr. Anderson: I completely appreciate that, senator. In fact, that is our view. While providing rights, treaties also intend that the rights be exercised and enjoyed. There was a practical aspect to the treaties. That is to say that hunting, fishing, trapping, selection of reserves and construction of cabins would actually take place. The treaties did not create an abstract possibility of activity; they created a firm promise.
Senator Nolin: What you are asking us for is some kind of an injunction.
Senator Joyal: I should like to pursue the question raised by my colleague Senator Nolin and try to understand the impact of the amendments you are requesting us to adopt. In one of the amendments, it is asked that proceedings be stayed pending the decision of the Supreme Court of Canada with respect to the reference provided.
If I understand the effect of that amendment, it is to ensure that there are no proceedings in which you will have to express an opposition in court. In practical terms, your amendment would allow you to avoid having to go to court to register an opposition on the very case whereby you would have to face a proceeding initiated by the new Nunavut government. Is the way I interpret the impact of the amendment correct? In other words, it is to prevent a permanent process of litigation between you and the new government of Nunavut insofar as a decision would involve an aboriginal from your group being sought in justice for a breach of regulations or for contesting regulations. Is that the way you interpret the impact of the amendment?
Mr. Anderson: The amendment would allow us to proceed with a judicial determination of these issues. We are in Federal Court now in Samuel. The first amendment requested is that Canada shall refer the issues in Samuel to the Supreme Court. Thus, we would be bound by that process to participate in proceedings before the Supreme Court. The amendments are deliberately sequenced in that way. Your concern that it may provide an unintended protection from litigation or from enforcement action is not what the amendment is intended to do. A reference to the Supreme Court is requested because it would prevent the case from dragging on for five or six years. In this way, we could hope for a resolution in some reasonable time, which is clearly in the interests of the Denesuline, Canada and the Inuit.
On the second issue concerning the stay of proceedings, as I am sure you are familiar, a stay of proceedings is commonly used by Crown counsel and governments where a question in a certain prosecution or case will be answered by the outcome of another. There were stays of proceedings in Northwest Territories courts for issues exactly like these, that is, hunting charges. The Northwest Territories prosecutor stayed proceedings on their own because of the Samuel case, which has been unexpectedly dragged out. That is why it should go to the Supreme Court for resolution.
It is only on those cases that the stay is requested. A stay is not an exemption from prosecution. Nor is it immunity of any kind. It is administrative.
We are saying that it is important for the Denesuline to have their rights recognized and affirmed by the Nunavut Court of Justice before they stand before it.
Senator Joyal: I should like to come back to the case presently before the Federal Court. At which level of proceedings are you at now? Your proposed amendment is dated March 9, 1993. It will be six years next month. Where are you in the proceedings? I understand that you are just at the trial level, not at the appeal level yet.
Mr. Anderson: That is correct. The Statement of Claim as attached, senator, has been amended several times. This is the most recent version that was provided to counsel and the courts in recent months. We are going through Examinations for Discovery. We are discovering government documents in particular. They have been asking us questions. I must say that, even though we have attempted to expedite the proceedings, it is taking quite a long time. Part of the delay between 1993 and today is explained in some of the text in the early part of the submission.
There were several attempts made by Denesuline to negotiate with the Government of Canada. The elders in the communities in particular did not want litigation commenced that involved another aboriginal nation until the elders were absolutely convinced there was no alternative. The invitation to court came directly from Minister Siddon in 1993. He said, "We are not going to talk to you about it. Take us to court." When the elders were given that information, they reluctantly provided instructions to file the case -- very reluctantly. Every time there has been a glimmer of possibility that substantive discussions would take place, the case was not withdrawn but deferred to try to provide an environment in which negotiations can take place.
In essence, even our discussions with the Inuit of Nunavut have been predicated, in the June 1, 1993 letter for example from Paul Quassa, who at that time was the president of the Tunngavik Federation of Nunavut, and also in comments made directly to us by Jose Kusugak in January 1997. They both have said that in order for substantive negotiations to take place, the issue of whether or not the Dene have rights north of the 60th parallel must be determined. They have committed themselves in writing and verbally to commence these discussions as soon as either the minister acknowledges that rights do apply fully throughout all of the traditional territory of the Dene or the court determines it. That would open everything up.
We are in that state now where everyone is waiting for this to be resolved. We are at the trial division in the Federal Court, and going through discovery. The federal government is taking a bit of time to proceed with it. Hence the request to you senators to amend Bill C-57 to require a reference to the Supreme Court so we can get on with it.
Senator Joyal: If I understand the conflict between you and the government, or the Minister of Indian Affairs, you have a conflict of interpretation of the territory that should be covered by the 1907 and 1910 treaties; and you also have a conflict of interpretation of the way that your rights, which are recognized under those treaties, would be interpreted in future because you have there a new government, a Nunavut government, that could interpret the nature of those rights in a way that is not in conformity with your own way of seeing the privileges that you recognized as yours. Am I right in understanding it that way?
Mr. Anderson: That is a good summary. The definition of the area to which treaty rights apply is essentially at the core of this. The rights themselves have been adjudicated by the Supreme Court numerous times, so that is reasonably well defined, but it is the territory in which rights apply that is at issue. As I indicated, we could not find a reference anywhere else in Canada where they have drawn a line on what they call meets and bounds. They have always accepted that it has gone throughout. In fact, a treaty First Nation person south of 60, Chief Denechezhe, under the natural resources transfer agreement, the Horseman and Badger cases, can hunt in Alberta without a hunting license because the Supreme Court has merged and consolidated the boundaries of the treaties in its decisions starting with the Jack case then Horseman and finally Badger in December 1996. However, going 80 kilometres north of his home community, the government is arguing that the chief has no rights even though he can hunt in the Foothills of Alberta.
Senator Joyal: If I may add something, madam chair, I was involved, as was Senator Adams, when we entrenched section 35 in the Constitution. To tell you candidly my approach, I thought very sincerely that section 35 protected treaty rights all over the territory of Canada, be it within a province or under federal Crown, probably more under federal Crown than anywhere else because of the special responsibility that the federal Crown has with the treaty Indians in Canada. I hope that, in any proceedings, that will be confirmed by the Supreme Court of Canada. If not, we would have to certainly reassess the intention that we had originally in entrenching aboriginal rights under section 35. To me, that was quite clear. Again, we will see what the court will decide on that.
On the other aspect of the kind of government that issues from the agreement that was entered into with the Inuit people, the Nunavut territory, if I give you my opinion, I think it is sui generis. We were dealing there with a form of government that is neither federal nor provincial. Call it third level, but it is something different. We will have to, through the court and negotiation, define that sui generis level of government. I think it is as much the precise intention that we had with Senator Adams in those years.
No one knew in 1982 what self-government was. We asked the question, and we could not define it in a comprehensive way. We could say that it includes this and that, but it could include this, but we do not know. It is still an emerging notion that is coming into our legal fabric in Canada, and you are contributing to define it. The new Nunavut territory is also contributing to defining it. It is a major step forward. I do not think that, at this point, we have achieved the total understanding of all the implications of that concept of self-government. For one, I am totally supportive of any initiative to try to bring us to a better understanding of the implications of that. No doubt all the work that you, your people, and the Nunavut people are doing is helping us to achieve that kind of objective, which will be helpful for all the other aboriginal groups in Canada. This bill is an element of it. I accept that you are not opposing it. I think it is an important bill.
Senator Andreychuk: I will pick up on Senator Joyal's comment about self-government. One of the issues in our Aboriginal Committee is that there is a clear indication from the aboriginal community that self-government is something they will define for themselves and then negotiate with the Government of Canada. Consequently, the struggle is not as simple as our committee or the Government of Canada determining what it seems to say is self-government. That is what leads us into the courts.
It seems to me that much of this discussion should have occurred when the Nunavut Act was passed. I personally was very disappointed that the Aboriginal Committee chose not to hear from this group, when they were requested, to air that issue. They did appear before the House of Commons committee but not the Senate committee. It is with regret, because much of the discussion we are having today should have occurred then.
The new Nunavut court that will be set up is being set up because the Nunavut Act is being put into place on April 1. As I understand it, about 85 per cent of the population of Nunavut territory is made up of those people who had the treaty rights settled, and that agreement, covering the people in Nunavut, will continue.
They have a responsibility to ensure that their treaty rights are implemented and maintained. They are approximately 85 per cent of the people of Nunavut. The new entity of the Nunavut government, itself being a public institution of Nunavut, is 100 per cent of the people of Nunavut.
Why do you believe that this will impinge any more on your rights than what the territorial courts were doing previously? The territorial courts would have had some capacity to rule on some of these issues. There has been an existing court system. That existing court system is not being changed in any way, with the exception that it will now be administered by a new territory. There are not as many levels, but not much has changed. Your initial point that they may rule adversely to your claim exists today. Is it because that 85 per cent have their claim settled and some of your claims overlap with theirs and you believe it is a conflict of interest for them?
Am I making myself clear?
Mr. Anderson: I understand you clearly, senator. Essentially, the distinction is that, first, regardless of the composition of the Nunavut Court of Justice, none of the things we are suggesting here is intended to impugn the impartiality of the Nunavut Court of Justice. We refer to that in our submission. We recognize it as a new court, established under Canadian constitutional jurisdiction for Nunavut. The Unified Court of Justice is an interesting legal concept. We can appreciate its utility in establishing a court system in such a vast area with a relatively small population. There are aspects to this that we see very clearly.
The issue with respect to this court, though, is that at the present time the Northwest Territories courts, that is the politicians, directors of departments, and enforcement agents, are not enforcing the Northwest Territories law in effect. They are taking a stance where they do not wish to push the issue. They know the Samuel case is before the courts and they were letting it move on that basis. Even though a federal territory, the Attorney General has said what Canada's position is with respect to rights over that territory, the current Northwest Territories government is not prosecuting Dene for failing to produce a licence and things like that.
It is not expected that that will be the case when the Nunavut Territory is created. Unlike the Northwest Territories government, the Nunavut Wildlife Management Board, the water board, the surface rights tribunal, et cetera, are all agencies of public government that are also creations of the settlement agreement itself. In the settlement agreement, these agencies are intended to implement the agreement on behalf and for the benefit of the Inuit. However, these very same agencies are becoming, through the legislation that is being passed to implement the agreement, agencies of public government. The distinction is that the purpose of these agencies, at their root, is to establish, for the benefit of the Inuit of Nunavut, pursuant to the agreement. They also have this merged role as agencies of public government.
The distinction is that the purpose of these agencies at their root is to establish regulations, management schemes, plans, et cetera, for the benefit of the Inuit of Nunavut pursuant to the agreement. They also have this merged role as agencies of public government.
We would expect that the Nunavut Wildlife Management Board would be busy immediately following April 1 setting up management plans and wildlife protection regulations and things that do not exist now in the Northwest Territories in that way. The planning structures that are created here do not exist in the NWT in the same way today. There are committees, boards and groups, the caribou management board being a good example. The membership of the caribou management board, interesting enough, includes people from the governments of the NWT, Saskatchewan, Manitoba and Canada. The aboriginal participants on that board are only observers. There will be a big change to Nunavut Wildlife Management Board because they will be Inuit. It is an agency provided for and explicitly protected. Bill C-133 explicitly created the Nunavut Wildlife Management Board as one of the very first functions Canada performed.
The distinction will be the intent, the activity, the vigour with which the agreement will be enforced and the increased likelihood of prosecutions under aspects of the agreement, which very largely deals with land and resources in the Nunavut court system. Therefore, we feel it is crucial that, prior to the Nunavut Court of Justice dealing with any issues like this, the constitutionally protected rights of the Denesuline in Manitoba are clarified so that as we enter into the court we are all on an even playing field with respect to rights.
Senator Andreychuk: I will stop my questions now, although I have many more.
I believe that Senator Joyal has great influence with this government. If this issue could be resolved, one of the issues that did come out, in a positive way, of the Standing Senate Committee on Aboriginal Peoples was why are we always turning to the court to resolve these. If we are so certain about these issues, why can we not get to the minister and to this government to say, "Let's us sit down and resolve things." The court is costly, the money is being deflected, and these resolutions are festering sores that should be healed.
Part of the reason that the aboriginal committee -- and I should not speak for the majority -- passed it was that they were hoping that the government would negotiate and recommended that the government negotiate this issue very quickly. It will be a three-way competition for pieces of land that should not be in competition.
Senator Moore: Senator Andreychuk talked about another way of handling this besides going to court, and that is good. It has not just been this government either. I heard the minister say in August 1993 that we cannot resolve this, that we must go to court.
Senator Andreychuk: I am not absolving the previous government.
Senator Moore: When did it start? We are now in 1999. Was this underway in the 1980s?
Mr. Anderson: The formal negotiations, if that is what they would be called, between the Inuit of Nunavut and Canada began about 1982. The issues proceeded and there began to be questions about the possible involvement of the Manitoba Denesuline in the late 1980s, particularly intensifying in 1988-89 when their considerations were being made for the selection of Inuit fee simple lands -- Inuit-owned lands as defined under the settlement agreement. Indian and Northern Affairs Canada began to fret about this. There were memos developed and circulated. Justice started considering it. The Department of Indian and Northern Affairs, and the Department of Justice, began to start working amongst themselves to sort out what their position would be with respect to the rights of the Denesuline within Nunavut.
Clearly, if the Denesuline of Manitoba were recognized as having treaty rights applicable in Nunavut, and in particular the right to select reserves of land, they would need to be parties in the negotiation because their right to select land had not been resolved. One of the earliest pieces of correspondence that clearly indicates the position of the Crown appeared in 1989. That correspondence was between Mr. Leslie of the department and Mr. Abramson of the Manitoba Treaty and Aboriginal Rights Research Centre.
Senator Moore: Aside from the land mass, I want to talk about the use. We have heard this morning that the Dene have traditionally hunted and fished and trapped these lands that you want to be excluded from the jurisdiction of the new justice system. Have the Inuit used those lands?
Mr. Anderson: Particularly in recent times, parts of the territory have been used, yes.
Senator Moore: Do you know how long the Inuit have used those lands and what part of those lands they have used?
Mr. Anderson: I have an overhead. I could put it up briefly, if that would help. There is a study that was done by an ethnohistorian and anthropologist by the name of Czonka, who was working with the Inuit doing a study of overlapping lands between the Dene and the Inuit.
Senator Moore: There is a huge mass of land here. Even the land you are saying is under dispute is huge. This leads to Senator Andreychuk's point: Why could you not sit down and work this out? Why must you go to court? Is it that much of a contest? There are tens of thousands of acres of land here. What are we quibbling about?
Mr. Anderson: This map was prepared by the ethnohistorian doing work with the Inuit in that area. One of the things he was studying was this question of overlap. In 1910, at the time of the signing of the treaty, the Chipewayan or Denesuline territory extended along this line, and there was some overlapping land use beginning around Ennadai Lake. This is still consistent with the maps that both the Canadian Geographic and us have shown. This is clearly overlapping and non-exclusive, and you can see that virtually all of the area we have in our dispute maps was recognized by him as exclusive-use lands.
Senator Moore: Are you saying that everything above that hatch mark was used by both or by the Dene only or by the Inuit only?
Mr. Anderson: It is mixed. There was essentially an area that, at that particular time, was not being used. I should go back and show you a map of their territory as Thomas Hearne saw it. You can get an appreciation for it. Some significant events in the lives of both peoples had a huge effect on land use over time.
Senator Moore: What is the overlap? Is that the shaded area?
Mr. Anderson: Yes, on that particular map. In 1718 or so, this was Denesuline territory as seen by Thomas Hearne and others in the area. It extended from Coronation Gulf all the way to Churchill. You will note from looking at place names on maps that there are many Dene place names on the map throughout this entire territory. That is a vast area that extended down as far as the north end of Reindeer Lake, Lake Athabasca, Slave Lake, all the way to the Coppermine River.
What happened at the end to change this, and this is well documented, was that there were several waves of disease that began to change the numbers of both Inuit and Dene within the territory. As the populations decreased, Inuit use along the coast began to come into former Dene territories, largely because of the number of Dene. It was estimated that as much as 90 per cent of the Denesuline perished in these waves of disease, but still maintaining this core area. This is the boundary line. The 60th parallel would be here.
As time proceeded, even Czonka identified that there were still areas between. Our land use study is called "Denesuline Nene and Nunavut: A boundary in dispute," and the point that we make is that the people know where the boundary is. There was shared trade contact between the two peoples. It is reported that some of the Dene spoke some Inuktitut and some of the Inuit spoke some Dene. They could meet and would share tea.
The object is that this boundary was extremely well known, and this very straight line boundary the Government of Canada created has no reflection whatsoever with the boundary the two people have become accustomed to.
Senator Moore: You say it is well known, but was it agreed to? I am trying to get back to why the people in charge could not sit down and do this.
Mr. Anderson: There was no opportunity to do that.
Senator Moore: This is 1982, or before that? I do not understand this.
Mr. Anderson: The negotiations with the Inuit began primarily in 1982. Toward the end of the 1980s, Canada began to realize that the treaty land rights of the Denesuline may create a problem if the Inuit were working on selecting their fee simple lands under the agreement because Canada had delayed honouring the treaty promises to select land in the Northwest Territories and now would have to deal with it. The government began to consider what its position would be on land selection rights of the Dene within what would become Nunavut. The government decided at that time to take the position that rights somehow stopped at the 60th parallel, and that conveniently eliminated that problem in terms of negotiations.
Senator Moore: They do not stop.
Mr. Anderson: It is interesting. After persistent pressure from us, one of the senior negotiators from Specific Claims West, Indian and Northern Affairs, came to Ottawa to go through all the files to find the root of this policy. She found nothing. The only reference she could find to the north-of-60 rights issue was that it was because of the Nunavut Settlement Agreement.
Senator Moore: It is interesting, Mr. Chairman, that we end up at this juncture in the process being faced with this very fundamental problem. I do not know why it could not have been worked out before. This committee will always do its job, but it is amazing that it ends up here.
Senator Adams: I know the people. I arrived in Churchill at 1953. At that time, I started working with the military in Churchill. I think I know your dad, chief. Some of my Chipewayan friends who worked with me at Churchill could speak my language. I was surprised. There were people from Manitoba up there trapping and hunting. I do not think things have changed.
Nunavut is not saying you cannot come over the boundary into Nunavut. We recognize that we are both natives. I would not like to see the Nunavut government start charging people for hunting on their own land. I believe the same thing would happen at the boundary with Saskatchewan. That is my concern today. I do not know about a court decision. I do not know whether or not the Inuit will do any good for us. I am not a lawyer, but I see how far the land claims went with the Government of Canada.
Do you have a land claim for the Government of Canada? Are you thinking about putting in a land claim for the Dene in Manitoba?
Mr. Anderson: There are specific outstanding claims at the present time to treaty selections within Nunavut, yes.
Senator Moore: They have been the subject lands in dispute?
Mr. Anderson: Earlier, I showed you a map with red dots. Those red dots have been selected lands. They are confirmed by BCR, band council resolution, and have been mapped and submitted to the Government of Canada for consideration. Those are not all the selections, however. Those are only the ones that have been confirmed to date. The federal government has been actively discouraging the Denesuline from picking any more sites by saying, "You have no right to do that."
Yes, there are outstanding specific claims to land. Depending upon the outcome of the Samuel case, there may be an outstanding aboriginal title claim developed and presented for Denesuline Nene in the southwest Keewatin.
Senator Adams: Your main concern right now -- that is, if you go to court -- is not the land but the ability to hunt. Is that what the claim is for, or is it for the property?
Mr. Anderson: The claim is for both, namely, traditional hunting practices and hunting in remote areas. Some of our hunters -- as yours do -- travel several hundred kilometres when they are hunting or moving from their home community to their base camp. In one way of describing it, it is called "hub-and-spoke" hunting. You need a base camp when hunting in that territory, particularly in the winter or late fall. The land aspect is related to cabin sites, camp sites, existing sacred and cultural sites. The use is to be able to continue to use and occupy those sites in order to continue traditional pursuits. There is a land component to it as well as use of resources.
Senator Adams: I have some difficulty with that. Since 1970, there has been management of the caribou between the Department Indian and Northern Affairs, Saskatchewan, Manitoba, and the territories. I was surprised to hear that the people never caught on before about the location of the hunting area. You have organizations for caribou management and it is the same thing for trapping. Why, all of a sudden, is this coming up now? It should have come out before the agreement was signed.
The Chairman: The committee is probably not in a position to consider whether or not people should have done things earlier.
I do want to leave you with the feeling that your rights are protected under the Constitution of Canada. Nothing has taken away from your rights whatsoever. When the minister appeared before us, we were assured that as far as land claims were concerned this bill that involves justice in the new Nunavut territory is completely neutral. We were assured several times in answer to several questions that this particular bill that is now before us was completely neutral as far as land claims are concerned. I wish to leave you with that thought.
I thank you very much for your presentation. We will certainly take it into consideration.
Mr. Anderson: I appreciate the opportunity to appear here this morning. It was an honour to make our presentation in such an historic room.
The Chairman: Our next witnesses are from the Federation of Saskatchewan Indian Nations.
Chief Edwin Boneleye, Black Lake Denesuline First Nation, Federation of Saskatchewan Indian Nations: This is my first time in the Senate. I was recently elected chief, so this is a new experience for me and I am kind of nervous. It is unfortunate that some of our technical staff and legal counsel could not be here today. I am not sure if we can answer some of your questions after our presentation, but we will try to do so.
Our brief is contained in this book. We just did a briefing yesterday and I have been on the road up to this time. I will present this on behalf of Black Lake, Fond du Lac and Hatchet Lake First Nations.
The Chairman: I believe senators all have a copy of the introduction contained in your brief but we do not have the maps before us. We have only a few copies here for the senators to take a look at later on or while we are discussing it now.
Unless you read your presentation into the minutes, it will not be made part of the minutes of this meeting. There may be parts of this that you would like to repeat, even though we have it before us to read.
Mr. Boneleye: The defence of our homeland, Denesuline Nene, and our inherent rights within this territory have been our preoccupation since the arrival of European traders in the 18th century. On behalf of the Athabasca Denesuline Nations and the Prince Albert Grand Council, I thank this Senate standing committee for the opportunity to again defend the interests of the Denesuline within their homeland.
In 1993, we appeared before the House of Commons standing committee during its consideration of the Nunavut Act. At that time we urged Parliament and the Government of Canada to exclude the Denesuline homeland, approximately 80,000 square kilometres, from the territory to be included within the scope of the Nunavut Act. The 1993 submission is attached to our presentation. Such an exclusion would have enabled the Inuit and Canada to proceed with establishing the Nunavut territory with over 95 per cent of its targeted land base intact, while at the same time validating the Denesuline's constitutionally protected aboriginal and treaty rights.
We failed to achieve the exclusion of our homeland from the Nunavut Act at that time. As a consequence, we face the prospect of the creation, in April 1999, of the new Nunavut territorial government that does not recognize our aboriginal and treaty rights. Nor will it provide the Denesuline with the democratic right to represent its interests within a significant portion of its homeland.
Today, we appear before you to urge the Senate standing committee to recommend that further consideration of Bill C-57 be suspended and that the Parliament of Canada undertake whatever measures are required to suspend the implementation of the Nunavut Act, in particular the creation of the new territorial government on April 1, 1999. We believe that such a moratorium should continue until Canada and the Inuit of Nunavut fully recognize Denesuline aboriginal and treaty rights and conclude overlap arrangements that are mutually acceptable.
Denesuline history and contemporary archaeological research confirm that we have continuously occupied this disputed territory within Nunavut for approximately 3,000 years and, conversely, that Inuit occupation of this area did not occur until the introduction of the fur trade in the early 1800s.
In the decade prior to the signing of Treaty 8 and Treaty 10, members of the Geological Survey of Canada, led by J.B. Tyrrell, found the territory between Lake Athabasca and the Thelon River under the control of the Denesuline. This occupation and utilization has continued during the past 50 years as documented by our own land use studies. Maps attached to our presentation set this out.
The Athabasca Denesuline entered into Treaty 8 and Treaty 10 in order to confirm their agreement to share their homeland with the Crown in exchange for the sacred pledge that there would be no "forced interference" with the "way of life," that the Crown would protect the Denesuline and their homelands and that benefits in the form of goods and services would be provided by the Crown to assist in the maintenance and development of their nation.
During the negotiations of the comprehensive claim by the Inuit, which led to the Nunavut Settlement Agreement and Nunavut Act, Canada continuously rejected the existence of the Denesuline treaty and/or aboriginal rights in the N.W.T. As a result, like all other N.W.T. Dene nations with treaties, the Athabasca Denesuline were unable to defend their interests either within the Nunavut negotiations or through separate comprehensive claims negotiations in the N.W.T.
In the spring of 1993, the Inuit of Nunavut signed a letter of understanding, which is appended to our submission, with Athabasca Denesuline agreeing that in the event that the Government of Canada or the courts recognized Denesuline treaty and/or aboriginal rights in the disputed territory, the Inuit would be prepared to amend the Nunavut Act to incorporate Denesuline rights, benefits and privileges.
Canada, however, pursued the finalization of the Nunavut Settlement Agreement and Nunavut Act based on the continual denial of Denesuline rights and in violation of their own comprehensive claims policy which states that settlement lands should be traditional lands that are currently used and occupied by the claimant and that no lands will be granted to any group in the contested area until the dispute is resolved. Both principles were violated.
The Inuit were unable to demonstrate any current use of approximately one-third of the Denesuline territory within Nunavut, and there was no consent by the Athabasca Denesuline to the inclusion of the approximately 80,000 square kilometres of their territory into Nunavut, nor any overlap agreement with respect to those lands.
Since 1993, the Athabasca Denesuline have attempted to secure justice through a variety of federal commissions, reviews and direct negotiations while placing their initial legal action on hold. The Statement of Claim is attached to our presentation. Both the Indian Claims Commission in its special report of 1995, a copy of which is attached, and the Royal Commission on Aboriginal Peoples recommended that Canada formally recognize Denesuline Treaty 8 and Treaty 10 rights in the N.W.T., including Nunavut. The Minister of Indian Affairs and Northern Development and the Minister of Justice rejected those recommendations. Consequently, negotiations with the Inuit could not and have not been formally undertaken, despite numerous attempts. A summary of Denesuline actions is attached to our brief.
Instead, Canada has settled a comprehensive claim with the Inuit of Nunavut and passed the Nunavut Act without meaningful Denesuline consultation and without our consent. New boundaries and a territory are being created despite unresolved overlapping interests. Comprehensive wildlife management regimes are being established which will now govern our traditional harvesting practices.
Canada has done all of that despite the specific wording in Treaty 8 and Treaty 10 regarding harvesting rights; despite the documented proof of our exclusive, as well as overlapping use and occupation in southwestern Keewatin; despite the recommendations of the Indian Claims Commission that we have treaty rights in the N.W.T. and Nunavut that Canada must recognize and fulfil; despite ongoing litigation seeking a declaration as to our rights; and despite the terms and conditions of Canada's own comprehensive claims settlement policy.
How realistic is the possibility of amending legislation and constitutional provisions after the fact? How realistic is it to change an administrative regime that is already in place and operating on the basis that our people do not have rights? If we have had an uphill battle convincing Canada of the legitimacy of our claims over the past decade, before the creation of Nunavut, how realistic is it that Canada will reverse its position after the creation of Nunavut based on the settlement that they agreed to defend politically and legally?
Even if a court agrees that we do, indeed, have treaty or aboriginal rights north of 60 and that Canada breached its fiduciary obligations, we fear that our claim might be limited to damages against Canada with little or no ability to significantly alter the Nunavut Settlement Agreement, its constitutional entrenchment or the Nunavut Act.
We have already experienced the limitations that can be imposed within Nunavut on our ability even to prove the legitimacy of our claims. The Commissioner of the N.W.T. recently refused to authorize a permit for an archaeologist to document sites of Dene use and occupancy as part of the Manitoba litigation to establish their rights. That decision apparently was influenced by representations from the Inuit Heritage Trust and the Inuit of Arviat.
We see that as the tip of the iceberg in terms of actions that the new Nunavut authorities can take in the future to limit or even deny the historical claims and legal rights of other aboriginal people who use and occupy those lands.
Our fellow Denesuline in Manitoba propose certain amendments to Bill C-57 to suspend the operation of a Nunavut Court of Justice with respect to our rights until the Supreme Court of Canada reference is heard. We take this a step further by urging the Senate to send a strong message to the House of Commons that these amendments in the act creating the Territory of Nunavut be suspended until such time as an accommodation is reached with the other aboriginal peoples who have established rights in this area. As users and occupiers of Denesuline NeNe since time immemorial, we submit that this is not only consistent with the honour of the Crown, but equitable to all interested aboriginal peoples in the territory. It is legally and constitutionally defensible and, most important, respects the heritage of our forefathers and improves the prospects for future generations of Dene people.
Do not permit an irreversible process to take place which ignores the existing constitutional rights of other aboriginal people and which will be difficult if not impossible to disentangle, politically and legally, once the Territory of Nunavut and the Court of Justice to enforce their laws is established.
The Chairman: Thank you very much. Grand Chief Fox is next.
Grand Chief Charles Fox, Nishnawbe-Aski Nation: I am the Grand Chief of Nishnawbe-Aski Nation in Northern Ontario, which represents 48 First Nations under Treaty 9 and Treaty 5. We encompass approximately two-thirds of Ontario's land mass. There are about 30,000 people of Ojibwa, Cree and Ojicree descent within the territory. You may ask what I am doing here. Some islands on the James Bay coast will be transferred once the Nunavut Act kicks in, and we are here to express our concerns regarding that impending transfer and its impact on our traditional activities with respect to those islands. As well, we believe that First Nations have unfettered aboriginal title to those islands.
Madam Chair and honourable senators, I am pleased to speak on behalf of Nishnawbe-Aski Nation and, in particular, one of our member First Nations, the Attawapiskat First Nation, with respect to Bill C-57. We are here to support the Sayisi Dene First Nation, the Northlands First Nation and the Manitoba Keewatinowi Okimakanak in their effort to seek amendment to Bill C-57.
We share the position that Bill C-57 will impact negatively upon the constitutionally protected inherent treaty aboriginal rights of First Nations, not only in Northern Manitoba but in Northern Ontario as well. The Nunavut Act, the Nunavut Settlement Agreement and the Nunavut Court of Justice jurisdiction will negatively affect nine First Nations along the coast of James Bay in much the same way that our counterparts in Northern Manitoba have expressed to this committee. We fear that the exercise of justice, as contemplated under the Nunavut Court of Justice, especially where harvesting and land rights are concerned, will be detrimental to nine First Nations given that the Nishnawbe-Aski Nation territory on the western coast of James Bay abuts the newly created territory of Nunavut.
Our people are greatly disturbed by the fact that, under the Wildlife Management Board, the Inuit will have priority harvesting rights and the Nunavut Court of Justice created by Bill C-57 will have the power and responsibility to enforce the regulations of the board. Moreover, the people of Attawapiskat First Nation are gravely concerned that the establishment of Nunavut will further encumber their claim to aboriginal title over the James Bay sea islands, the largest of which is Akimiski Island.
We are allied with the Manitoba Dene, as well as other aboriginal groups affected by Nunavut, in order to force the Government of Canada to deal squarely with our concerns, which have remained unheard or frustrated to date. We have adopted the Manitoba Dene struggle as our own struggle. In that regard, we wholeheartedly support the Manitoba Dene in their effort to modify the jurisdiction of the Nunavut Court of Justice because we believe that the considerable powers afforded under this legislation will set a precedent for the treatment of all First Nations affected by Nunavut.
It is our hope that the efforts of the Manitoba Dene will set in motion the necessary parliamentary actions that will protect the rights of all those aboriginal groups that are affected by the Nunavut Act.
Since this is the first time that the Nishnawbe-Aski Nation has appeared before the Senate on the issue of aboriginal title over Akimiski Island, we should like to speak to you about the broader issue of the Nunavut Act and the creation of Nunavut, both of which will come into being on April 1, 1999, and the impacts upon the people of the Nishnawbe-Aski First Nation who live along the western coast of James Bay.
Akimiski Island is located just off the west coast of James Bay. It is the largest island in James Bay, approximately 2,000 square kilometres. The nearest community to it is Attawapiskat, which is about 80 kilometres west of Akimiski Island on the James Bay coastline at the mouth of the Attawapiskat River in Northern Ontario. The traditional territory of the First Nation extends into the mainland and also out to sea and includes several islands in the immediate vicinity. The island is a traditional harvesting area of the Crees of Attawapiskat who have a history of occupancy. Traditional use has been intensive and sustained since time immemorial and continues to be so in spite of periodic interference from provincial and federal authorities.
Attawapiskat can demonstrate continuous and current use of land, sea and sea islands for traditional purposes since long before the first assertion of European or Crown sovereignty. In particular, Attawapiskat can demonstrate unbroken traditional use and occupancy of Akimiski Island and the other sea islands, along with use of the sea waters and the sea ice. That is supported by archival records and by testimony of our elders. Indeed, the name Akimiski is a Cree word that means "land across the water." In addition, the Attawapiskat Cree were an organized society long before first contact with Europeans, at the time of the first assertion of European or Crown sovereignty, which probably occurred before or after the Hudson's Bay Charter of 1670. In summary, it is the position of Attawapiskat that it can establish aboriginal title, as I have briefly outlined, in accordance with the tests set down by the Supreme Court in the Delgamuukw decision.
Part of the aboriginal title history of Attawapiskat was affected by the James Bay Treaty 9 when it adhered to the adhesions of 1929. However, the surrender clause of the 1929 adhesion did not cover the sea islands and islets, including Akimiski. Without going into precise detail of the inclusions, omissions or ambiguities within the surrender language of the adhesion of 1929, which comprises significant grounds for the comprehensive land claims sought by Attawapiskat, suffice it to say that the First Nations' position asserts that their aboriginal title to Akimiski was not extinguished by the treaty or any other lawful means.
On April 1, 1999, Akimiski Island is projected to fall under the jurisdiction of the Nunavut Territory. It will be administered pursuant to the terms of the transfer from the Northwest Territory administration to the new Nunavut administration. In particular, Akimiski will become subject to the public government of Nunavut, including the Nunavut Court of Justice. The people of Attawapiskat will not have a right to vote for this government, nor will their aboriginal title and associated rights to the island be recognized under the new Nunavut Court of Justice. Rather, they will be considered as another stakeholder subject to the Nunavut jurisdiction and licensing regime contemplated by the Wildlife Management Board, in much the same way that the Dene of Manitoba apprehend.
One distinction I should like to make, however, between our situation and the Dene is the fact that we are not faced with overlapping claims between the Inuit and the people of Nishnawbe-Aski Nation on the James Bay Coast. That is because the Inuit did not include Akimiski Island in the settlement of their comprehensive claim in 1993.
In addition, the Attawapiskat First Nation are asserting aboriginal title to Akimiski Island, as contrasted with the position of the Manitoba Dene, who are primarily concerned with their treaty rights north of 60. However, we believe that regardless of the source of their rights, be it aboriginal title or treaty-based land assertions, we believe that Attawapiskat First Nation will be equally affected by the new Nunavut territorial jurisdiction, such as the justice mechanisms posed by Bill C-57.
It is equally important to distinguish between Nunavut, the comprehensive claim agreement -- Tunngavik settlement-Eastern Arctic, which was signed on May 25, 1993 -- and Nunavut, the territorial boundary creation project. Attawapiskat does not have any quarrel with the settlement, which was based on the traditional or aboriginal title of the Eastern Arctic Inuit people. That territory did not include Akimiski. There is no aboriginal title or right linkage between the Inuit and Akimiski. The difficulty is with the territorial boundary creation project slated for completion on April 1, 1999. The new territory of Nunavut will be carved from the eastern portion of the current Northwest Territories. The new Nunavut territory is projected to include Akimiski Island.
It is the position of Attawapiskat that the transfer of Akimiski from the Northwest Territories to Nunavut will have a significant negative impact on aboriginal title and other rights of Attawapiskat in relation to Akimiski. Nunavut will be a public government. Regardless of ethnicity, Canadian citizens resident in Nunavut will have a right to vote for the Nunavut government, which will be controlled by the Inuit. The people of Attawapiskat, the aboriginal titleholders to Akimiski, will not have that right. Therefore, the people of Attawapiskat will have no effective say in the governing of Akimiski. That is an unconscionable result.
Once the Nunavut Act comes into effect, it will be very difficult to pry Akimiski loose from the new territory. It makes more sense to deal with this issue before April 1, 1999, which is precisely what we have asked the Minister of Indian Affairs and Northern Development to do, with no response forthcoming as of this date.
The Government of Nunavut will have extensive jurisdiction over matters such as wildlife harvesting, resource development, environmental protection, the administration of justice, imposition of fines, penalties, imprisonment or other punishment in respect of contravention of any law made by the legislature.
The Nunavut Act means that critical decisions can be made in all of those areas without any direct or indirect representation from Attawapiskat. Article 5 of the Nunavut Agreement deals with wildlife, which will be administered by the Nunavut Wildlife Management Board. This section deals with Inuit control over harvesting in the Nunavut Settlement Area.
Attawapiskat people who have been exercising their traditional lifestyle of harvesting on Akimiski Island will have no such priority rights as of April 1, 1999. Furthermore, the creation of the Nunavut court system will pave the way for enforced rulings of the Wildlife Management Board over the people of the Nishnawbe-Aski nation.
In the case of the Northwest Territories, Attawapiskat had a form of indirect involvement and influence through its fiduciary relationship with the federal government. However, the creation of Nunavut will mean a new territorial government controlled by the Inuit, creating a significant constitutional barrier between the federal government and Attawapiskat.
The Nunavut Implementation Commission came into force in June of 1993 under the auspices of the Nunavut Act. The commission's mandate, set out in section 58 of the act, is to advise the Government of Canada, the Government of the Northwest Territories and Tunngavik on the establishment of Nunavut. Section 59 states its responsibility vis-à-vis public consultation and meetings to inform the residents of Nunavut of its activities and to obtain input in setting up the Government of Nunavut.
The people of Attawapiskat were not consulted, although the proposed transfer of Akimiski Island to Nunavut directly affects their constitutionally protected aboriginal title and other rights of the First Nation. In these circumstances the federal Crown is subject to a fiduciary duty to act in the best interests of Attawapiskat, as held in leading Supreme Court decisions on aboriginal rights.
We recognize that the fiduciary duty of the federal Crown is tempered or modified by its fiduciary obligations to other aboriginal peoples, in this case the Inuit, and its duties as a public government. However, a key aspect of the fiduciary duty is an obligation to consult in a reasonable way before implementing any change likely to have a significant impact on aboriginal and treaty rights.
The 1997 Delgamuukw decision holds that First Nations consent may be required in certain circumstances. In our opinion, this is definitely a case that significantly impacts on the people of Attawapiskat First Nation, with grave outcomes on the exercise of their constitutionally protected rights, and that merits seeking their consent.
In the case of Akimiski, the federal Crown has failed in its legal obligation to consult in a reasonable and meaningful way. Beyond general public announcements, Canada has made no effort whatsoever to consult with Attawapiskat on the Akimiski issue. The Nunavut partners of Canada have made no effort to consult with Attawapiskat in spite of contact attempts made by Attawapiskat. This is a situation where First Nation Attawapiskat consent is required, especially in light of the fact that the Inuit, by their own admission, have no aboriginal claim to Akimiski.
The Nishnawbe-Aski Nation and the Attawapiskat First Nation have filed notice with the federal government of a comprehensive land claim on behalf of the Attawapiskat First Nation for Akimiski Island. It is our position that the island was never surrendered and in that sense aboriginal title was never extinguished. The federal government did not act in the best interests of the First Nation by handing jurisdiction over the island to Nunavut. In this and other cases where there was past governmental interference over Akimiski, there was no reasonable consultation with Attawapiskat.
We want to clarify that Nishnawbe-Aski Nation supports the self-determination of the Inuit of Nunavut in their own land, including the right to their own justice system. However, because the federal government has taken the position that the rights of First Nations, namely the Manitoba Dene, will not be recognized within the new territory of Nunavut, we are under the apprehension that the federal government will extend the same arbitrary treatment to other First Nations. There is every reason to believe that Canada's actions thus far are aimed at creating disunity amongst aboriginal peoples, namely the Inuit and First Nations in Canada, by denying one group's rights while fully recognizing another's.
For this reason, we have banded with other First Nations affected by Nunavut to urge the federal government, as represented by the Minister of Indian Affairs and Northern Development, to establish a mutually agreeable process with First Nations to ensure that the creation of Nunavut and any related legislation is consistent with the aboriginal, inherent and treaty rights of First Nations.
Finally, for the record, I should like to state that the Nishnawbe-Aski Nation vigorously opposes the passage of Bill C-57 without the amendments proposed by the Manitoba Dene that will afford them justice toward the proper recognition of their treaty rights and other constitutionally protected rights. When the Nunavut Act comes into force this spring, the Nunavut Wildlife Management Board will have jurisdiction over hunting, fishing and trapping, not only in the Dene territory but in the territory of the Nishnawbe-Aski Nation. Our First Nations will be subject to the rules and regulations of the Nunavut Wildlife Management Board and we will have no say in how this jurisdiction is exercised. I believe the Manitoba Dene when they say that the federal government is deliberately promoting misconception on this whole issue, especially where the minister has assured members of the Senate that the Nunavut Act will not negatively affect treaty and aboriginal rights even though the federal government has made statements on the official record to the contrary. This duplicity is shameful.
This further reinforces our distrust of the federal government to deal justly with our issues. We cannot rely on their assurances of goodwill. We must seek explicit legislative pronouncements that will modify the legislation to our satisfaction. The Manitoba Dene have done so by seeking a temporary stay of prosecution for those aboriginal people who are charged with offences, particularly involving harvesting in their own homeland. It is disheartening that these amendments have found very little support within the House of Commons debates on Bill C-57.
However, the Nishnawbe-Aski Nation, along with the other groups affected by Nunavut, will continue to step up efforts to ensure that the rights and traditional lands are recognized. They have pledged to take every available means to enlist parliamentary and public support for our struggle.
I urge the Senate to take these very serious matters into consideration with respect to the proposed amendments to the Nunavut Act, not only as that act pertains to the Nunavut Court of Justice but with respect also to the broader implications of the entire act on the affected First Nations. Consider as well as Canada's actions and inaction to date on this vital issue.
In summary, in relation to the question of fiduciary responsibility and the trustee obligation of the federal Crown in this particular case, we see that being transferred to the people of Nunavut. They will assume that fiduciary responsibility. That places us in an adversarial position with the new Government of Nunavut, and we find that wholeheartedly unacceptable. The treaty was signed with the Dominion of England as represented now by Canada, and that is where resolving the issue should lie. It should not be transferred to the Inuit. We should not create that adversarial position. It is incumbent upon the Government of Canada to negotiate with First Nations to satisfy our concerns and issues.
The Chairman: Thank you for your presentation.
Ms Linda Sayazie, Athabasca Advisor, Prince Albert Grand Council, Federation of Saskatchewan Indian Nations: Our presentation package outlines the Dene's traditional territory and the overlap issues with Nunavut, and we have included maps. The package also contains our affidavit to the Federal Court on behalf of the Athabasca Dene First Nation, as well as the Indian Claims Commission report on the Athabasca Denesuline harvesting rights in the territories. There are executive summaries and correspondence from the minister to the Grand Council in the Athabasca First Nations.
The three presentations today all address the same issue: aboriginal treaty rights within Nunavut territory. One senator stated that settling this issue out of court would be less costly. That is very true for all three groups presenting, especially the Saskatchewan Dene band. To settle this by negotiation would be better than going to court, but to date all negotiations with both the federal government and the Nunavut government have failed. Hopefully the Senate will give us a further opportunity and will help us in our efforts to have our treaty rights recognized.
The Chairman: Thank you.
Senator Beaudoin: Grand Chief Fox, if I understand your presentation, you come from an island in James Bay that is now in Nunavut. Nunavut consists of the islands in Hudson Bay, James Bay and Ungava Bay that are not within Manitoba, Ontario or Quebec.
How does that encroach on the principle of justice? James Bay, of course, is near Ontario, Quebec and Manitoba. Is it not logical that it be added to Nunavut, or was it added to the Northwest Territories previously?
Mr. Fox: It is purely a question of fact. There are islands off the coast of James Bay, both on the Quebec side and the Ontario side. Traditionally, we are part of the Northwest Territories, but those islands will be included in the transfer of jurisdiction from the Northwest Territories to Nunavut. Our concern is the enforcement of hunting, fishing and trapping. That will also be transferred to Nunavut. The court cases that have already taken place with respect to the Sayisi Dene and the Dene in general and the enforcement of Nunavut guidelines for wildlife management cause us concern. If that is the treatment that First Nations citizens are getting in the Dene territory, why should we expect that the enforcement will change when it comes to those islands?
We feel that those particular islands on the Ontario side are still subject to aboriginal title; therefore, we are filing an aboriginal claim.
Senator Beaudoin: What is your proposal? What would you like to have?
Mr. Fox: I propose that the Government of Canada sit down with us to conclude negotiations on aboriginal claim, aboriginal title. So far, however, we have not heard a response from the Government of Canada to that request.
Senator Bryden: Are those islands occupied?
Mr. Fox: No, they are not. They are not occupied. No one lives on them per se. Akimiski Island is a site for a bird sanctuary, but it is used traditionally by Cree harvesters on both the Quebec and Ontario sides.
Senator Bryden: The important point was that the island, the territory, that particular piece of ground, will be governed by a government in which you do not have an opportunity to participate because none of your people are resident in its territory.
Mr. Fox: That is right, and it is so far geographically removed that it does not make any sense to us.
The Chairman: Following through on this same question, why was Akimiski Island included in the Northwest Territories when it must be 1,000 kilometres south of 60?
Mr. Fox: That is a good question, Madam Chair. I do not have the answer for that. I have always had difficulty making sense of what Canada does in terms of jurisdiction. I cannot at this point answer that question, either.
The Chairman: Perhaps Mr. Anderson should like to come forward again and give his answer.
Mr. Anderson: Briefly, it has to do with the common law definition of lands and waters. If we look at the legislation establishing provinces, it is defined as the land to the low water mark and any islands that, at low tide, are connected to the land. Islands that at low tide have a spit of sand between the island and the mainland are part of the provinces. All islands that are fully disconnected from the land at low tide within James Bay, Hudson Bay and Ungava Bay are federal territory. It has to do with the definition in British common law. However, in some cases there have been redefinitions of that. One of them is the reference to the Supreme Court regarding subsurface rights in Georgia Strait in British Columbia. I will not get into that, but that is why those islands are part of the N.W.T.
Senator Andreychuk: Grand Chief, did you make your representations to the federal government or to either House of Parliament when the first Nunavut Act was passed?
Mr. Fox: No, we did not. No representations were made. At that time, the Attawapiskat First Nation, along with the governments of Ontario and the Northwest Territories, were looking at co-management options for the island. The First Nation was contemplating co-management versus filing a land claim. The co-management discussions did not bear any fruit. As a last resort, the First Nation and we have decided to file that claim.
Senator Andreychuk: I will turn now to Saskatchewan. In your negotiations, what is the position of Saskatchewan? Do they support your position or are they taking the traditional position of non-intervention beyond their own territory? I should have asked earlier: Does the Manitoba government support your claim to your treaty rights beyond the 60?
Ms Sayazie: Yes, they do. We are trying to consolidate the two cases, both Manitoba and Saskatchewan.
Senator Andreychuk: Are you getting the Province of Saskatchewan to support your position?
Ms Sayazie: No. They have not supported our position because they say that it is up to the federal government. They left it up to them for the final decision on that.
Senator Andreychuk: One of these maps indicates that some of the areas that you are claiming in what will be Nunavut are lands that were used by the Saskatchewan Dene exclusively. Does that mean that they did not overlap with the Manitoba Dene, or are you using that term to mean that they did not overlap with any of the Inuit?
Ms Sayazie: Are you referring to the first page?
Senator Andreychuk: I am referring to the first coloured map, which says "land use" and "current land use." You pointed out areas that currently are not used by either Inuit or Saskatchewan Dene and then currently used exclusively by Saskatchewan Dene. I want to know where the Manitoba Dene came into it, if I can use that term.
Ms Sayazie: This study was done before the Manitoba bands did their Statement of Claim.
Senator Andreychuk: Might some of your traditional claims, then, be the same ones that Manitoba is making? That is to say, might they overlap?
Ms Sayazie: Yes.
Senator Andreychuk: Are you also taking the same position as Saskatchewan? Maybe I can ask the chief that.
Your difficulty is that the court system may rule in Nunavut over your claims and you would prefer that the existing system stay in place. Is that correct?
Ms Sayazie: Yes, and we want to have our treaty rights recognized north of 60. We have the same issue as Manitoba does in regard to treaty rights.
Senator Andreychuk: At the time of the setting up of Nunavut did you come before the House of Commons or the Senate with your briefs?
Ms Sayazie: The Saskatchewan Dene bands did come before the standing committee in 1993.
Senator Andreychuk: On the original act, in 1993?
Ms Sayazie: Yes.
The Chairman: Saskatchewan did appear, then.
Senator Andreychuk: I should clarify that. When I was talking about the Senate not having a hearing on this, I was not referring to the original Nunavut Act. I must admit that I have not done my research as to who appeared where on the original Nunavut Act. I was referring to the amendments to the Nunavut Act coming through Bill C-39 last year. I thought that had more relevance to the land and treaty issues than does Bill C-57.
The Chairman: You are quite right on that. I am trying to clarify that the Saskatchewan group did appear on that but the Manitoba group and the Ontario Dene did not.
Senator Andreychuk: Perhaps we did not ask whether or not the Manitoba group appeared in 1993.
Ms Sayazie: Only two groups appeared.
Senator Andreychuk: Two groups appeared: Saskatchewan and Manitoba. Is that correct?
Senator Moore: I should like to follow up on Senator Andreychuk's question with respect to this map. Ms Sayazie, you said that the hatch lines area indicates the lands currently used exclusively by Saskatchewan Dene; is that correct?
Ms Sayazie: Yes.
Senator Moore: My question is directed to you and to Mr. Anderson. Is there agreement between the people in Saskatchewan and the people in Manitoba about this map? Do you agree with this?
Senator Moore: I find the map interesting because it shows various uses, current and not, by Inuit, Dene and Saskatchewan. I am trying to see where the common ground is here. If you are trying to merge your cases, is there a joint position on acceptance of this map?
Mr. Anderson: The Federation of Saskatchewan Indian Nations' document contains a series of maps, some of which are in various stages of development. This particular map actually merges the outer boundary of the land use information from research conducted by the natural resources secretariat and by the Saskatchewan First Nations. It was merged electronically in our geographic information system. We were supplied with the mapping information from Saskatchewan. Actually, Saskatchewan requested us to create that merged map, because we operate a geographic information system.
We added the base information and then made the combination. You can see the border "A" licence area that we discussed is mentioned. Notice its remarkable consistency to the land use information, even though the Northwest Territories government established that area many years before this land use research was done.
Essentially, that is a composite of those lines. Some possible revision of certain boundaries, depending upon the generation of land use research that was used to comprise that map, might be of some assistance.
Senator Moore: There is no a date on this map.
Mr. Anderson: It is correct to say that it did pre-date the research we did in Manitoba.
Senator Moore: Did you use the same engineering firm as the people in Saskatchewan?
Mr. Anderson: No. The MKO chiefs and assembly established our staff group 10 years ago to do what a consulting firm can do. We did it internally, with our own staff and our own computer equipment.
Senator Moore: Have you looked at this map?
Mr. Anderson: I have seen those maps.
Senator Moore: To what per cent do you agree?
Mr. Anderson: I agree they were accurate with the information provided. One thing that was not mentioned is that members of each of our respective nations live in each other's communities. There are Northlands First Nation people in Wollaston Lake, and vice versa. That tends to create a variable line; that is, depending on whose land use information was used at what time, as we developed the information they would be mapped twice.
Senator Moore: If we sit around and quibble over a finite definition, we will not get it done. Is this 75 per cent or 50 per cent, 85 per cent or 95 per cent correct in the estimation of the people from Manitoba?
The Chairman: We are looking at the area directly north of Manitoba; is that right?
Senator Moore: Yes.
Mr. Anderson: Members of the Saskatchewan Indian Nations use territory in the north of Saskatchewan. In the context in which that map was made, I would agree with it. However, I can say that it is not exclusive to the Saskatchewan Denesuline. The Manitoba Denesuline use lands west of 102 around Snowbird Lake and Kasba Lake, for example, but they are all Denesuline. Those lands are used exclusively by Denesuline.
Senator Moore: Does this go beyond 102?
Mr. Anderson: No, but I can show you an example with regard to our land use. This slide shows the maps that were used. Notice some of the unique shapes on this one, especially the small extension of the land base and the travel corridor. That is what I mean. We generated that. These are summaries of all of our composite land use information. This outer boundary of the extended land use is fully subsumed into this up to here.
Senator Moore: That is right to the boundary, Mr. Anderson. I am trying to get in my mind who is using what traditionally and who rightfully has claim to those lands. I should like to see an overlay of this to see where it all fits. I do not feel that I am getting an answer at this point in time.
The Chairman: We do not have that before us right now.
Mr. Anderson: It could be done if the committee wishes to have it.
Senator Moore: I do not know why it would not have been done beforehand. This is just a continuation of the saga. I do not know if we are coming together or going in opposite directions here.
The Chairman: Perhaps part of our difficulty here, Senator Moore, is that once you take out the provincial boundaries, these two groups from Manitoba and Saskatchewan are basically the same group. They are the Dene Nation, the Denesuline Nation of that area.
Senator Moore: Is there agreement between those two groups as to what they each use or have used traditionally? Is, therefore, what is left not a concern? Does it go elsewhere? I am not getting the feeling that there is an agreement or even something approaching an agreement. I thought they would say, "We are well within 85 per cent. We are close." We could then work at it.
The Chairman: I am getting nods of heads from the other end of the table saying that there is agreement.
Mr. Anderson, is there not general agreement between the Manitoba group and the Saskatchewan group that the outer boundary of those lands was traditionally used by the Dene who live south of 60?
Mr. Anderson: Yes. I was concentrating on the map where we have merged. Essentially, that map merges land use from five communities. Each of the communities will have overlaps in terms of latitudinal use, in part because of common territories and relations between families. Also, in the old days, when caribou came to the tree line to a crossing, one way the people communicated to each other was to start a large fire. The smoke would be visible in the still fall air for miles and miles, calling everyone together to hunt in family groups. Even today, much of the hunting is done by families and by communities.
There will be overlaps latitudinally, and exclusivity is not intended to mean inter-tribally between Denesuline. The important boundary is the extent of land use.
Yes, there is agreement. That agreement is arrived at directly between nations, clans and families. It is done at a very personal level. Everyone knows where everyone's clan and family use is; because of inter-familial relations people from those communities share the same area.
Senator Moore: I understand that but I do not see it documented.
The Chairman: Have you any further questions, Senator Moore?
Senator Moore: No.
Senator Adams: I have a question for Grand Chief Charles Fox. Are you in Treaty 5?
Mr. Fox: I am in Treaty 9.
Senator Adams: That is not on the map here, is it?
Mr. Fox: No.
Senator Adams: Treaty 5 is only up to around Manitoba, I think.
The Chairman: None of these maps takes us past 60.
Senator Adams: That was my question. I thought you were in Treaty 5. You have a land claim right now with the Government of Canada. Are you in negotiations?
Mr. Fox: We are filing letters for the land claim.
Senator Moore: For the island?
Mr. Fox: Yes.
The Chairman: Does that mean that you are in the preliminary stages of a land claim?
Mr. Fox: Yes, we are.
Senator Adams: Beginning with Nunavut, at that time the claim was for all of the territory. Are you living in a reserve area or is there no reserve where you live?
Mr. Fox: We live on a reserve. There are 48 reserves in the Nishnawbe-Aski Nation.
Senator Adams: You now want to claim the islands on the territory. You have been back and forth hunting there for thousands of years. At that time your reserve area, which was, say, from there up to the James Bay area, did not come under a treaty agreement that included that island.
Mr. Fox: We are saying that we did make treaty in 1905 in the southern portion of the Nishnawbe-Aski Nation. I can show you the map of that. The treaties of 1929 and 1930 go right up to Attawapiskat and Akimiski Island lies 80 miles offshore of that First Nation. We are saying that the islands, rocks and islets off or within the James Bay waters are not included within the description of the surrender clause of the treaty. Therefore, aboriginal title was not extinguished on those islands. The Cree are saying that those islands are rightfully theirs.
Senator Adams: We heard from witnesses in the Aboriginal Committee last night regarding the Makivik Corporation. You have the James Bay agreement that you say claimed some of the island right along the coast of Hudson Bay. We asked a witness if he had a problem with Nunavut regarding the claim of those islands. The witness said that he did not have a problem with the settlement at Nunavut. Nothing has come forward from Ottawa from either the Department of Indian Affairs and Northern Development or the Government of Canada. That is why I asked the same thing of the Cree who live along the Quebec border. Sometimes, I think the same situation is happening in the negotiations with Nunavut regarding those islands along the shore and the Cree agreement along James Bay.
I do not know about the history of Nunavut, but I think the Government of Canada has given us this agreement for the land claim and maybe later on they will negotiate with them for a hunting area or something else. I think that is what they meant by Bill C-57.
We have settled Nunavut. As long as you are native, you will not be charged for hunting in the Nunavut area. That is my concern. All those islands up to the coast of Labrador belong to the territory. Once, we had a community right at the tip of Labrador. In fact, we had three. One was on an island in the territory; one was in Quebec; and the other was in Labrador. They were so close that they could throw rocks at each other but they were divided into three places.
The Chairman: Before we adjourn, I do not want you to go away with the impression that this committee can do wonders and force the government to take another look at the Nunavut Act. The act that is presently before the committee is the bill setting up the system of justice in Nunavut. Many of your concerns and many of the complaints were originally with the Nunavut Act itself. That is when they should properly have been addressed. Unfortunately, they were not addressed at that time. You are quite right, the government did not do its job.
Regarding the bill currently before us, to set up the justice system in the new territory, there are only three things that this committee can do. We can recommend to the Senate that the bill be passed; we can recommend amendments to the Senate; or we can recommend that the Senate not pass the bill at all. We cannot recommend that it suspend consideration of the bill until land settlements, and so on, are cleared up. That is the mandate that we have and the things with which we must deal.
We have listened to your presentations today with a great deal of sympathy. We will take them into consideration as far as we can within our mandate.
I wish to thank you very much for appearing before us. Welcome to Southern Ontario!
Mr. Anderson: I neglected to circulate a document that I had for your assistance in this matter. The amendment that we requested was presented to the House of Commons committee. As part of the preparation of that amendment, the MP for Churchill sent the structure of our amendment to parliamentary counsel. A version of our proposed amendment has actually been produced by parliamentary counsel, identifying section number and clause. I should like to present that to this committee so that you can see how parliamentary legal counsel has converted our amendment. If you want to consider it further, at least you will be that much further ahead.
The Chairman: You are quite welcome to do so. We will add that to the list of evidence before the committee and to our deliberations.
Mr. Anderson: Thank you.
Mr. Fox: I should like to thank committee members for giving me the opportunity to present our case from the Nishnawbe-Aski Nation perspective in relation to Nunavut and the creation of that act.
We are not here to pick a fight with the Inuit. I am simply reminding the Government of Canada that they have some fiduciary obligations with which they are obligated to deal. The Senate is our last process after appeal besides the courts. In terms of the various procedures that Parliament and the Senate go through, you are the last resort. We are coming to you with these presentations, these concerns and these issues in the hopes that you will deal with them as you outlined to try to get some justice flowing our way to deal with the issues that are of concern to us.
The committee adjourned.