Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 39 - Evidence - May 29, 2018
OTTAWA, Tuesday, May 29, 2018
The Standing Senate Committee on Aboriginal Peoples met this day at 9:02 a.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples; and for the consideration of a draft budget.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public, who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or listening via the Web.
I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional, unceded lands of Algonquin peoples.
My name is Lillian Dyck from Saskatchewan, and I have the privilege and honour of chairing this committee.
I will now invite my fellow senators to introduce themselves.
Senator Tannas: Scott Tannas, Alberta.
Senator Gold: Marc Gold, Quebec.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
The Chair: Today, we continue our study on what a new relationship between the Government of Canada and First Nations, Inuit and Metis peoples of Canada could look like. We continue looking forward at the principles of a new relationship.
Before we begin this morning, however, you have before you, senators, a budget with two activities to British Columbia and another to the Western Arctic. Perhaps you would like to have a look at that and, then, if there are any questions, please let me know.
Is it agreed that the following special budget application study on a new relationship between Canada and First Nations, Metis and Inuit people, for the fiscal year ending March 31, 2019, be approved for submission to the Standing Committee on Internal Economy, Budgets and Administration, following a final review by the Senate administration that will be overseen by the Subcommittee on Agenda and Procedure?
Hon. Senators: Agreed.
The Chair: We will now return our attention to our study on what a new relationship should look like between Canada and Indigenous peoples.
We have on our first panel this morning, from the Grand Council of the Crees, Grand Chief Abel Bosum, Executive Director Bill Namagoose and Director of Federal Relations Brian Craik, and from the Oujé-Bougoumou Cree Nation, Advisor Paul Wertman.
Chief Bosum, you have the floor, to be followed by questions from senators.
[Editor’s Note: Mr. Bosum spoke in his Indigenous language.]
Abel Bosum, Grand Chief, Grand Council of the Cree (Eeyou Istchee): Thank you very much for the opportunity to address this committee today on an extremely important issue. I want to communicate to you a simple message.
Although it is a hard-won message that is the result of over 40 years of struggles and challenges for the Cree Nation of Eeyou Istchee, the simple message I have for you is that it is possible to fully acknowledge and give substance to Indigenous rights in a way that does not negate the roles of the provincial governments, the federal government and industry.
In short, it is possible to implement all of the essential elements of UN Declaration on the Rights of Indigenous Peoples, and the sky will not fall. The current situation of the Cree Nation bears out this assertion. Let me elaborate.
In the early 1970s, Quebec announced its plan to build the James Bay hydroelectric project, a project at the time that was the largest hydro project in the world. Even though it was built entirely within our traditional territory, this project was announced without consulting us and without obtaining our consent. The prevailing concept underlying this approach toward Indigenous peoples by both resource developers and governments was based on an old colonialist concept of terra nullius and on the doctrine of discovery. These concepts held that the territories of Indigenous people were not occupied by organized nations and, therefore, were open for acquisition by European powers. According to these concepts, there would be no legal impediment to colonial settlement that would require discussions or consultation with the Indigenous people who occupied these lands or to obtaining their consent. These concepts held that Indigenous people were simply non-humans, squatters at best, and without rights.
The Cree Nation refused to accept this premise. We took legal action, seeking an injunction to stop the James Bay hydroelectric project from going forward. In a surprisingly progressive decision at the time, the Quebec Superior Court granted us a temporary injunction to halt the project since, if it went ahead, it would cause serious harm to our culture and way of life, in a way that could not be adequately compensated. A week later, however, the Quebec Court of Appeal suspended this decision. The initial decisions confirmed that we did have rights in respect to our traditional territory, and Quebec and Canada were compelled to negotiate with us. The result was the James Bay and Northern Quebec Agreement, signed in 1975, the first modern Indigenous treaty in Canada.
The James Bay Agreement affirmed a number of key elements that were crucial to building the Cree Nation, including a partnership between the Cree nation and Quebec in the future development of the territory; a measure of self-governance for our communities and our nation involving local and regional administration, health, education, policing and justice; a regime to ensure social and environmental protection with respect to future development projects; the protection of our traditional way of life; and support to realize our economic development potential.
However, both the federal and provincial governments fell far short when it came to implementing the agreement. Over the course of the next two and half decades, we initiated legal action and lead a public campaign to redress these failures. We also strongly opposed certain new hydroelectric development projects on our territory.
After years of struggle, legal battles and public campaigns, both Quebec and Canada came to understand that we were serious about our rights and that we would challenge any initiative on our traditional territory that did not respect those rights. In 2002, we signed the historic Paix des Braves with Quebec, and in 2008, we signed a new relationship with Canada. These nation-to-nation agreements enabled us to begin to re-establish and rebuild our relationship with each government on a new or more equitable footing, one of nation-to-nation partnership between equals.
The historic Paix des Braves, or Peace of the Braves, provided the mechanism for Quebec to meet its unfulfilled obligations under the original James Bay Agreement by transferring their implementation and related financial resources to the Cree Nation. It also confirmed that development taking place on our traditional lands must comply with Cree environment and social protection regimes under the agreement. Such development, therefore, required social acceptability for the Cree, in effect Cree consent and involvement. This requirement has now become the mainstream of all significant economic development projects within Eeyou Istchee.
The new relationship agreement with Canada was concluded in 2008 and transferred substantial federal responsibilities under the James Bay Agreement to our Cree Nation Government, along with financial resources to carry them out. These agreements affirmed our authority to govern ourselves and our entitlement to participate in economic development within our territory.
We then undertook negotiations with Quebec to change the governance regime in Eeyou Istchee, northern Quebec, and to develop a government system based on our inclusion. Pursuant to this Cree-Quebec governance agreement, the Cree Nation Government has assumed responsibility for the land use planning processes and resource management functions previously exercised by James Bay municipality, a territory of approximately 70,000 square kilometres. At the same time, a new regional government was created that exercised land use planning powers over a larger territory of approximately 300,000 square kilometres.
This new regional government is comprised of an equal number of representatives of our Cree communities, as well as non-Native municipalities in the region. Premier Couillard commented on this regional government by saying:
Not only was that a first in Quebec’s history, but it turned Quebec into a State leader in terms of finding ways to include Aboriginal Nations in societal affairs in general, while preserving your culture heritage, values and institutions.
In our recent 2017 Cree Nation of Eeyou Istchee Governance Agreement with Canada we have furthered the scope of our self-governing powers on lands under federal jurisdiction. The Cree First Nation and the Cree Nation Government now exercise those powers by adopting laws, not bylaws, and these laws no longer require approval by Canada. We will soon be in a process of further developing our own Cree constitution which enshrines our basic rights, institutions and governmental processes.
It has been over 40 years since we signed the James Bay and Northern Quebec Agreement. Since then, the Cree Nation has forged explicit nation-to-nation relationships with federal and provincial governments. We have dramatically improved the standard of living in our communities. We have eliminated the application of the Indian Act. We play an important role in governance and economic development in our traditional territory. Perhaps, more importantly, we have empowered our people to be responsible for our own affairs. We have worked hard over the past 40 years to put all the necessary building blocks in place to engage in a unique form of Indigenous nation building.
We have achieved all these advances, and the sky did not fall. Canadians do not need to fear that recognizing, acknowledging and giving expression to Indigenous rights result in giving away the farm. It does not mean that resource development will come to a grinding halt. It does not mean that Indigenous people are anti-development. On the contrary, we believe that embracing our rights is a necessary condition for the orderly and sustainable development of resources within the territories of Indigenous people.
We have, in our own little corner of the planet, repaired hundreds of years of colonialism, and we have moved to recreate our original sovereignty as much as possible within a contemporary context.
Our experience in northern Quebec demonstrates one path for achieving reconciliation. We know from firsthand experience that reconciliation is not an abstract state of grace. We have learned that reconciliation is a practical endeavour that takes hard work, and it can be done in a way that works for everyone. Since the signing of the James Bay Agreement we have concluded some 85 additional agreements, including around 25 amendments to the original agreement to ensure it reflects contemporary realities.
Our treaty is a living and evolving document. It is not fixed in stone. It is open ended and flexible, while being a treaty which takes precedence over any current policies of the day. For Canada, there now exists an unparalleled opportunity to redress the historic exclusion of Indigenous peoples. The opportunity is there for everyone to find the important mix between rights, governance and development.
We have learned that it is possible to transition toward a model that acknowledges our Indigenous rights; includes our participation; creates a possibility for win-win arrangements and orderly and sustainable development; and honours the Crown and harmonious relationships among our peoples. Meegwetch.
Senator Tannas: Gentlemen, thank you for your presentation. We appreciate it.
I would like to ask a bit about how you see the potential for your success and your leadership in the rest of the country. From time to time we’ve been visited by Harold Calla and his group from the West Coast, the First Nations Major Projects Coalition. Their vision is to try and build major projects through participation and through exercising control of major projects. The First Nations in that coalition will exercise their rights. It really dawned on donned on me, as you were speaking, that’s what you have created in your little corner of the planet, as you said.
We have some problems in Canada that require geographic pan-Canadian solutions. How would you see yourselves participating in something like a power line that has to run across Canada or a road or a railway or a pipeline? How would you see exercising your jurisdiction over a national project? It’s obviously very timely with the Trans Mountain situation.
Do you have any comments on that?
Mr. Bosum: The James Bay Agreement has a chapter on environmental impact assessment, which has worked for us. Unfortunately it’s the only regime that exists, perhaps, across Canada. This regime has allowed us to participate in reviewing projects and offering suggestions to improve projects, so that at the end of day, everybody understands the impact of the project and understands the remedial measures that would go into a project. It allows the promoter and Indigenous people to sit down to see what kind of agreement could come out of there so that the Indigenous people will have something to benefit from.
At the same time, the process we have also allows our input into projects that are detrimental to the environment or to our people. If this process was applied across Canada, it would allow every stakeholder including Indigenous people to participate. Through a reasonable period of reviewing a project, there would be some consensus on different parts.
The problem is that these big projects have impacted for hundreds of years. Yet, we’re trying to do this very quickly. We’re not given the proper time, and we’re not inviting the people most affected to speak on them.
Our experience in Quebec has been a good one, up until now. We have a good relationship with the government. The government has also helped in explaining to promoters what they need to do, what the treaty is all about, and what the rules are in the territory.
Senator Gold: Before I ask my question, let me tell you how happy I am to be here with you today. It feels like coming full circle for me in many respects. My early exposure to issues for Indigenous communities came in part through my childhood friend and your colleague, the late Bill Grodinsky.
My late father introduced me to Jim O’Reilly when I was thinking about going to law school. My dad said, “He’s one the smartest guys I know,” and he still is. As an academic, I was influenced by my colleague Brian Slattery, who was the first one of whom I was aware to explore the colonial roots of Canadian constitutional law at its heart. We all learned a lot from him.
I remember organizing a conference when I headed up a research centre in the mid-1980s and partnering with two Ontario First Nations. It was the first conference, at least that I was aware of, on self-government. It seemed a bit of a dream at the time, but it was a wonderful conference.
I thank my late father again because he was involved in the Oka crisis. Here we are today, and I am grateful you are here to share your wisdom with us.
Of course, not all communities across the country are in the same position geographically or in terms of legal achievements as you are, but what lessons can other First Nations learn from the experience you’ve had, both initially and subsequently to the James Bay Agreement? What would you do differently now, or what would you advise them to do differently than you might have been done back in the day? How can you support and how are you supporting other First Nations in pursuing their aspirations for self-governance?
Bill Namagoose, Executive Director, Grand Council of the Cree (Eeyou Istchee): We have learned a lot of lessons. I acknowledge your comment about the late Bill Grodinsky. He was a great friend of the Cree Nation. He was our corporate secretary for many years. He was a great legal adviser, and we still miss him to this day.
The lesson we learned is that when we sign agreements with governments, as we did with the James Bay and Northern Quebec Agreement, the governments get what they want and they walk away. In this case it was the largest hydroelectric project, as the Grand Chief described it, that was being built. At the time Quebec and Canada did not fulfill their obligations. Those obligations only became fulfilled 35 years later in Paix des Braves and in the relationship agreement with Canada. As an example, it was promised in 1975 that Cree communities would get community centres, but it took 35 years for those community centres to be built. It became possible in the new relationship agreement.
Also, we learned that governments are not able to carry out their obligations. That’s the model in La Paix des Braves and in the new relationship agreement, where we took over and carried out those obligations for a period of 20 years. When the new relationship agreement expires and the 20 years are up, those obligations will return to Canada. We have learned that you cannot come to governments and ask for solutions to be tabled. We come with the issue or the problem. We also table solutions. Then we negotiate those solutions.
On the government side, we have a lot of experience with chief federal negotiators. The worst chief federal negotiators are the ones that take a defence lawyer approach to the negotiations. They are there to defend Canada. You can never make a deal with a defence lawyer. If you send a lawyer or negotiator who is a problem solver, we get solutions. That was the approach Raymond Chrétien took in the new relationship agreement. His first approach was to visit the territory, meet the people, feel the culture and see the land. We took him on a trip for one year, after which he took the problem-solving approach.
I would advise other groups to urge governments to send problem solvers, and not defence lawyers, to our negotiations.
Senator Gold: As we all know, hundreds of Indigenous communities in our country do not have the same status in terms of their law-making powers. Some may have signed numbered treaties or other treaties where those rights were not recognized, at least by the government side. Many are still under the auspices of the Indian Act.
For those communities that may not have the same land base as you do or may not have the same, dare I say, leverage vis-à-vis provincial governments or others who want something from the land, how would you advise them to take steps toward moving from the colonial relationship, whether under the Indian Act or in terms of rights that have been ostensibly surrendered under treaty, to a more appropriate nation-to-nation approach?
Mr. Bosum: We have to understand that there are two types of treaties. You have the modern treaty that we are operating under that lays out the benefits and what everybody gets. Then you have the old treaties. The old treaties are very different, to a point that it’s really hard to even get started to open up that treaty because of its language.
Also, governments need to be open to look at the needs today, not what they were hundreds of years ago. You can’t start from hundreds of years ago. You have to look at what is happening today in the territory, what is coming up, and what lies ahead for those communities. It is required that provincial governments be involved, because in most cases we’re talking about lands and resources under the jurisdiction of the provinces. Often, they hide behind the federal government and are not there to participate.
In our case it was La Paix des Braves, the agreement with Quebec that first opened the door to implement our treaty. That helped us. Quebec realized that the territory had a lot of resources, that there was a future and that Cree people needed to be part of that future. It was that relationship agreement that turned the tide.
That was a lesson learned for us. The provinces, the federal government and the industry across Canada need to get involved and not be afraid of recognizing Indigenous rights. They need to be able to be part of a process to negotiate agreements related to development because it is through those developments that those communities will develop. You can’t build houses and infrastructure without economic activity. Part of the problem right now is that the only source for funding seems to be Crown-Indigenous Relations and Northern Affairs. There should be a lot more players to help these communities, particularly the ones up North.
Senator Doyle: I’ll follow up on Senator Gold’s questions because his questions were my questions also.
I am looking at the bottom of page 3 of your presentation where you talk about the James Bay Agreement:
. . . the federal and provincial governments fell far short when it came to implementing the agreement. Over the course of the next two and half decades, we initiated legal action and lead a public campaign to redress these failures.
Then on page 6 you say:
Over the course of the next two and half decades, we initiated legal action and lead a public campaign to redress these failures.
Then we see how much it has improved where you say:
. . . we have concluded some 85 additional agreements, including around 25 amendments to the original agreement . . .
I am curious. What caused this breakdown in the beginning two and a half decades ago? Was there a lack of understanding on the part of the federal and Quebec governments? Was it more a lack of respect for what your needs were? Your needs were very basic. You wanted health, education, policing and justice improvements, and what have you.
You’ve had a lot more success over the years with the new agreements and so on. How has your approach and the approaches of the provincial and federal governments changed, specifically to cause these better times to come about?
With the current negotiations in which you’re involved for this new coming together between the federal nation and your nation, are you confident now that it will be a whole lot easier to achieve because of the experiences that you’ve had in the past with respect to the specific agreements? Are you confident that it will be better?
Mr. Bosum: I have to say that no agreement is perfect. In the next round of negotiations there’s always a challenge to make it even better. I think we’ve established a very mature relationship now with the Province of Quebec and with Canada. The reason it took 35 years to implement, as Bill Namagoose pointed out, was that once the agreement was signed everybody went their way. The hydroelectric project was built. Quebec got their extension act and territory. Canada, of course, got their extinguishment clause.
There was no implementation. There was no implementation secretariat. The Department of Indian Affairs was administering the Indian Act. They were trying to implement a treaty with normal programs. It wasn’t until we had to renegotiate some of the provisions to clarify what was really intended that finally the outcome was that we took over the implementation and carried out our community planning to ensure that all basic services were built and operated by our people.
It has taken a long time for the governments to realize it. Today, in any of our agreements, we try to ensure that there is an implementation strategy, a built-in mechanism, so that when the agreement is signed the next day we start implementing it.
Senator Doyle: How does the Cree governance structure operate in Quebec? Is it a quasi-municipal status, or are you more independent than that? Are you a fully independent nation in Quebec?
It tempts me to ask: Are you a nation within a nation within a nation in Quebec? How do you operate? Is it a quasi-municipal structure? What exactly is your relationship with Quebec in that regard?
Mr. Namagoose: Our relationship with Canada and Quebec is based on a treaty, the James Bay and Northern Quebec Agreement. Inside that treaty we have section 9, which details how local governments function, whereas with the Cree Nation Government, the regional government, we are 20,000 people in 10 communities. The Cree Nation Government has elected representatives from each community. The Cree Regional Authority was established in 1975 and operated inside Quebec, but Canada did not recognize the Cree Regional Authority. It did not recognize the nation. It only recognized the individual communities.
It was only recently that Canada recognized the Cree Nation as a whole through the Cree governance agreement that we signed, that was adopted in Quebec, and that was brought here in Bill C-70. Then Canada actually recognized the nation as a whole, rather than the individual communities.
We have federal government legislation stemming from a treaty and recognition from Canada of how our nation operates. We also have special legislation with Quebec. That’s how our Cree Nation Government operates. There’s legislation stemming from the James Bay and Northern Quebec Agreement, which is a treaty.
One of the problems we experienced with implementation of the treaty was that the federal government, in 1975, thought that normal programs would apply to the Cree rather than getting special Treasury Board submissions for capital expenditures to fulfill their obligations, which was only done in 2008. That’s part of the obligation.
The Grand Chief explained earlier section 22 on the environmental and social impact assessment of projects in the Cree territory. We are participants in that environmental review process, not intervenors. We sit with Canada and Quebec as panel members and we listen to the intervenors. We are part of the decision-making process. We’re not intervenors. This is totally different.
Of course, Cree citizens can intervene, but we are part of the decision-making process. It is the same thing you would have with pipelines, power lines or hydro projects. This process has approved megaprojects in northern Quebec, and the Crees were participants and not intervenors or complainers. We were part of the decision-making process.
The Crees are not unanimous in that. We have Crees that oppose the decisions made by Cree Nation Government or the Cree panellists, but we sort it out in our internal processes. We’re not unanimous. People oppose and they’re free to oppose, but in the end we are part of the decision-making process.
Senator Patterson: It’s great to see you again. We had a happy occasion with the great support for Bill C-70 in this committee. I really appreciate your coming back to help us with this new relationship study we’re doing. We have a lot to learn from your experience.
I’d like to ask a couple of detailed questions. First of all, with the regional government, its representation from municipalities in the region and the Cree, could you tell us a bit more about how that works? Is there a chair of that organization? What assurances do the Cree have that you will have a strong voice in the regional government?
That is kind of a blend of former regional governments and your government. Can you give us a little more detail on how that is structured, please?
Mr. Bosum: Just to go back, I was referring to the James Bay municipality, which was the governing body of territories outside category 2 and category 3 lands. When we negotiated the governance agreement with Quebec, we extended our jurisdiction to category 2 so that the Cree Nation Government and the communities had jurisdiction on an additional 70,000 square kilometres, for a total of 75,000 square kilometres. A Cree Nation Government governs that.
In addition, the regional government was negotiated to include us in the governance of the territory. We have equal representation. We have 11 members on the Cree side, and the non-native municipality also has members. Of course, the municipalities are different in size and so forth, so they have more votes, depending on the size of the municipality. Ultimately, we have a structure where there are 22 votes on each side, the Cree and the non-Cree. This structure will be in place for the first 10 years. Afterward, we’ll have to sit down to negotiate that structure based on demographics at the time.
The Cree involvement in this new structure has been very positive. A lot of what we’re doing involves the municipal functions of the territory, but the agreement also allows, wherever there’s derogation of responsibility in other sectors, whether it be in wildlife, forestry or mining, for the regional government to be the first to assume those new responsibilities.
We see that as something that can evolve over time, incrementally, and build a good relationship between the people in the territory. It also empowers the Cree people. When we signed the agreement in 1975, the areas we were allowed to govern, what we call the category 1 lands, were like reserve lands. There were only 5,000 square kilometres out of a territory of 350,000 square kilometres. That was where we started. Today, we are now involved in the whole area of 350,000 square kilometres. That is certainly a new approach to governing the territory.
Senator Patterson: I am interested in the resource management functions. What revenue-sharing deal do you have? Is there a percentage of royalties that go to the Cree on resource development projects that would otherwise go to the province?
In those resource management functions, who is the ultimate authority? I know you’re participating at the table in the regulatory process, but who makes the ultimate decision on whether a project goes ahead and the conditions?
Mr. Bosum: That’s a shotgun question because, on the one hand, the revenue-sharing formula is under the agreement we signed with Quebec, La Paix des Braves. There’s a built-in formula to take into account the production of hydroelectric projects, mining and forestry in a territory. We started off with a base amount of $70 million, and they built in an escalation, based on new development that comes into a territory. We used that as part of implementing Quebec’s obligations.
As far as approving projects, there is an environmental process that the project goes through. At the end of the day, we are part of that decision making. Ultimately, it’s the Quebec administrator that decides, but so far our experience has been very positive. The process is very transparent, and everyone is involved who needs to be involved in assessing the project.
Yes, the Government of Quebec decides at the end of the day, but it does respect the process and the regime in place.
Senator Patterson: You have the moral authority from having been involved in the regulatory process.
May I ask another question?
Senator McPhedran: Gentlemen, thank you for being with us this morning. This is a question that I am directing primarily to you, Dr. Bosum, but I would welcome other panellists wishing to respond.
At page 5 of your notes, you mentioned: “We have eliminated the application of the Indian Act.” Could you share with us how you’ve been dealing with the existing provisions in section 6, et cetera, of the Indian Act that deals with the marrying-out provisions, which are still operating to exclude significant numbers of Indigenous women in the country?
Mr. Bosum: In 1980 we opted out of the Indian Act. We negotiated what we called the Cree-Naskapi Act, which transferred a lot of the jurisdiction to our communities and to the regional authority at the time.
More recently, in 2018, we renegotiated the Cree Governance Act, which was legislated not too long ago, and totally removed ourselves from the Indian Act. With the new agreement, we will start off with the powers that were in the Cree-Naskapi Act. Then we’ll gradually build on it as we go through the exercise of consulting our people and drafting our constitution that will govern the people of our territory.
Senator McPhedran: Is there a draft of that constitution at this time? If there is, what is the differentiation now in Canada between Indigenous women and Indigenous men if they “marry out?” How is that addressed in the proposed constitution?
Mr. Namagoose: In the Cree world we have two lists. We have the band list, which registers status Indians. We are still status Indians under the Constitution of Canada. Plus, we also have a beneficiary list. Beneficiaries are the people who signed the James Bay and Northern Quebec Agreement.
We operate the beneficiary list as a citizen list. The Indian Act and the Indian band list virtually don’t mean anything to us. In 1975, the so-called non-status designation for Crees was abolished because we were beneficiaries also. We keep track of the Indians and the band list under the Indian Act. We also have the beneficiary list but, in terms of operating our government, we use the beneficiary list or the Cree citizens list. The only benefit we have under the Indian Act is the designation as Indians. We also have the beneficiary list that designates us as citizens.
The band list is just a band number. It doesn’t apply in terms of our governance. People who marry whomever they marry are not compelled to leave. They have rights. They are Cree, but a non-Cree can never become a beneficiary by marriage. The children of the marriage will be beneficiaries, but the person who is not a beneficiary but marries a Cree beneficiary does not become a beneficiary. The beneficiary status is carried out through the mother or the father, and there’s no discrimination.
Senator McPhedran: Would I be understanding your answer if I were to conclude that there is no sex-based discrimination operating within your society?
Mr. Namagoose: No, not on the beneficiary list. There are still issues with respect to the band list which, like I said, doesn’t really mean anything to us because it’s not a functioning list. Our citizens are governed by the beneficiary list. There’s no marry out or marry in, but the children, like I said, become beneficiaries and enjoy the benefits of the treaty.
Senator McPhedran: Does anyone else want to speak to this?
Paul Wertman, Advisor, Grand Council of the Cree (Eeyou Istchee): The Cree people in northern Quebec have always maintained the view, as a people recognized as such under international law, that they have the right to self-determination. What comes along with that right to self-determination is the right to determine membership.
In the various negotiations that the Grand Chief and Bill Namagoose described, they adopted the principle that would guide the determination of membership. The principle was: once a Cree, always a Cree and not a Cree, never a Cree. However, the offspring of people who marry in, who are not beneficiaries or not Cree, are recognized as members.
Mr. Bosum: I’ll add that the Province of Quebec has passed legislation on customary adoption. That’s another interesting feature in regulating our membership. Although we say that once a Cree, always a Cree, there may be or there could be some exceptions, particularly in adoption because our people are marrying outside the Cree population. There are marriages that break down and children are implicated. We’re going through some interesting discussions right now with the Province of Quebec on how to regulate customary adoption.
Senator McPhedran: In the work that’s being done on the new constitution, is there any focus on greater inclusion or any guarantees of inclusion for women and youth, or is there any need for that?
Mr. Bosum: We haven’t started the process. The legislation was passed not too long ago. You approved it. We’re taking a little break at the moment, but it’s certainly on our agenda to begin a process of consultation with our people.
[Editor’s Note: Senator McCallum spoke in her Indigenous language.]
Senator McCallum: I am very happy to see them again.
In your handout you said that the right mix of Indigenous rights, governance and development has helped you. Could you speak a bit about consultation and how far it goes? Does it go beyond land? Does it go into other areas like health and justice that may have a negative impact on our people when laws or legislation come in?
Could you also speak a little bit about section 35?
Mr. Namagoose: When we speak about the Indigenous rights and development, we’ve experienced what we call section 22 of the James Bay and Northern Quebec Agreement. Section 22 is the environmental and social impact assessment process. The keyword there is social for the Cree. This is where we are participants in the social and environmental assessment of projects.
The right to participate is inside the treaty. That’s our Indigenous right. Development projects are proposed by Canada, Quebec, Hydro-Québec or other companies. They must go through that process. That’s why we call it the right mix of Indigenous rights and development. We are participants in the environmental review and in total impact assessment of the projects.
On health and justice, we have an arrangement with the Quebec government on health under section 17 of the James Bay and Northern Quebec Agreement. That’s a treaty right to health and social benefits. That’s an arrangement with the Quebec government, not with the federal government. We don’t deal with Health Canada. All the experts in health are located at the provincial level. Those are the people we link up with. We have our own board. It’s a Cree board, with three or four professionals sitting on the board that decide on our health issues. It is the same with justice. We have a justice advisory committee, and a lot of the implementation of our justice issues is done through section 18 of the James Bay and Northern Quebec Agreement.
All health, justice, local government, regional government and environmental assessment issues flow through the James Bay and Northern Quebec Agreement, which is a treaty right. That’s why we always insist on our relationship being based on the treaty.
Not long ago that Canada tried to abolish the James Bay and Northern Quebec Agreement. They prefer that we have a policy relationship with Canada rather than a treaty relationship. That has been the fight we explained under Bill C-70. That’s why Bill C-70 flows from section 9 of the James Bay and Northern Quebec Agreement and not from the self-government policy of the federal government. That’s where we get the expression that treaty trumps policy.
We know from experience that we cannot trust the government under their policies. We trust our treaty because we negotiated that treaty. It’s a 600 or 700-page document. That’s why we always insist that our Indigenous rights and our interaction with Canada and Quebec flow through that treaty.
Mr. Bosum: May I also add that we have two sets of ongoing processes? We have an implementation of our treaty. Many of the chapters in our agreement have five-year or seven-year agreement periods. Those are renewed every five years or every seven years, which allows us to talk about new issues going forward.
At the same time, we an office in Quebec City. Our embassy in Quebec City monitors provincial legislation. Whenever there’s legislation that we feel impacts the treaty or the rights of the Cree, we intervene to participate in hearings and to express our concern about or opposition to any legislation that may attempt to diminish our rights.
Brian Craik, Director of Federal Relations, Grand Council of the Cree (Eeyou Istchee): I’ve been a member of the two committees that look at projects proposed by Hydro-Québec or mining companies in northern Quebec. In the 28 years I’ve been following this, we’ve made 400 permit changes to the various projects built by Hydro-Québec. In the beginning, before that process started, I must admit we were dealing with a very raw project. La Grande project was to divert all of the rivers in a certain basin and shoot it out into the ocean to make as much electricity as you can.
The Cree saw that, and the most recent project that went through the process was the EM-1-A Sarcelle project. Hydro-Québec completely renovated their capacity to support building a project that has much less impact than La Grande project had originally.
One of the ironies of development back in the 1970s was that La Grande project threatened all Cree communities, which had an aspect of making those people work together. Because they had a big project and they had to work together, it helped to bring those people together to work together. There were actually people who came out of the school system. When the court case ended, people asked, “What do we do?” There was negotiation, and basically the Crees said, with a little variation, was: “We want what you’ve got. We want the school system. We want to control it. We want the health system. We want a justice system that is apparent in our communities and working.”
Because of that, the Crees were set on a path that was ideal for them in northern Quebec. The agreements that have been signed since then have been agreements to make the original James Bay Agreement more functional and to bring more benefits to the Crees. The process that reviews these projects is a process that takes change into account. Climate change is one of the issues before us right now that is being added to the list. Social impact has been there since the beginning.
That’s all I have to say. Thank you.
The Chair: We’re out of time unfortunately, unless you have a short question.
Senator Patterson: I have a really short question. Attawapiskat has a diamond mine nearby, and my understanding is that it has not benefited the community very much. You have the Stornoway project at Mistissini. How are you doing with Cree employment and revenue sharing in that project?
Mr. Bosum: Once the mine is in production, that will affect the revenues we get from the formula we have with Quebec. We also have an impact benefit agreement directly with the company. Again, once production and profits are made, there will be a percentage given to the community that is most impacted. Also a balance of it goes to the all other Cree communities. We have a formula inside the Cree Nation on how to distribute the revenues from the impact benefit agreement.
As far as employment, about 35 per cent of the people working at the mine are Cree.
The Chair: On behalf of all senators, I would like to thank our witnesses this morning from the Grand Council of the Crees and from the Oujé-Bougoumou Cree Nation, which we wished we had visited and maybe we will visit sometime in the future.
Thank you for your testimony. We have learned many lessons from you and could have many more questions.
For our second panel this morning, it is our pleasure to have with us today Ontario Regional Chief Isadore Day. Before we begin, I have been alerted that today is your fiftieth birthday. Happy birthday.
Hon. Senators: Hear, hear!
Isadore Day, Ontario Regional Chief, Chiefs of Ontario: Thank you, senators. It’s an honour to be here. I want to acknowledge the Creator, creation, prayers, the protocols and this territory, the unceded lands of the Algonquin peoples. On that note, I thought to myself if I were asked if I was over the hill that I would say I am at the Hill today. I am not over it. If I were over the Hill, I would be up the river without a paddle. It’s good to be here this morning.
I would like to again acknowledge this territory in a good way and in a way that gives recognition to the topic of discussion today. I commend the Senate committee for this particular study as it takes deep concentration and consideration of the relationship. The previous panellist spoke about the modern day context, and we will take a bit of a deeper look in terms of the historical context of treaties. You’ll hear some of that in my discussion.
I look forward to the day when a good portion of the lands in the parliamentary precinct is returned to the Algonquin people. When Ottawa becomes one the largest urban reserves in Canada, that would truly be an act of reconciliation.
Unilateralism has been the central problem with the federal and provincial governments, unilateralism in their relationship with Indigenous people. Free, prior and informed consent is a model of friendship and lasting relationships. I’ll explain that a little closer to the end of my presentation. The UN Declaration on the Rights of Indigenous Peoples is a welcoming of Indigenous rights into the larger human rights protection regime. In part, it reads:
Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,
That paragraph is from the preamble to the declaration and is an important concern for Canada to share in regard to fostering a better and stronger friendship with First Nations and, beyond friendship, a bond and commitment. That is a personal responsibility of everyone involved, from the Senate and the House of Commons to the bureaucracy and to all citizens across the country.
According to the landmark report by the 1996 Royal Commission on Aboriginal Peoples, First Nations need a sufficient land base in order to achieve economic self-sufficiency. The second volume of RCAP lists several recommendations about the economic goal of a sustainable land base.
We still do not have that. In fact, First Nations only occupy 0.2 per cent of Canada’s land. When we do try to expand beyond the postage stamp borders of our communities, government red tape stalls the process. A specific example is the community of Attawapiskat, which declared a state of emergency two years ago due to suicides and suicide attempts.
Chief Ignace Gull told Canada this spring that his youth are still discouraged and depressed. He also indicated that Attawapiskat is the site of one of the most major mining developments across the country, the Victor Diamond Mine. Attawapiskat desperately needs new homes and new infrastructure. The only way that will happen is by adding new land to the community through a process called the addition to reserve process or ATR, a process that has been going on for at least seven years. In the meantime, homes are crumbling. People are living in overcrowded conditions and are sleeping in shifts. Children are being taken into foster care and children are committing suicide.
Again, I want to note that recently Chief Gull came to me and asked if he would have his issues brought forward to a joint priority meeting between the AFN and the federal government. He explicitly described that it’s only this small process that’s holding up major infrastructure progress and development in his community. It is a bureaucratic issue.
Who is to blame? Canada and Ontario, for constant delays during the ATR process, and bureaucrats are failing to do their jobs properly. Overall, it’s a general lack of respect for our people, a lack of respect continues to kill our people. They must respect First Nations as the first people of this land. They must respect the treaty relationship that allowed the newcomers to share with us in the bounties of this land.
There is a parallel that can be drawn between the final province to enter Confederation and the current condition of far too many First Nations across Canada. Newfoundland became the tenth province back in 1949, not so very long ago. If you visit Confederation Hall in Charlottetown, one the phrases to describe pre-Confederation in Newfoundland is that far too many people are living in grinding poverty. The British wanted to offload or download their responsibilities for Newfoundland to the Dominion of Canada. I should point out that Senator Doyle was born a British subject, which is very significant in the context of the discussion today.
Of course, Canada promised to increase welfare payments and introduce baby bonus cheques if Newfoundland were to join Confederation. Paul Martin’s father was the Minister of National Health and Welfare when Newfoundland joined Confederation. Premier Joey Smallwood would introduce Paul Martin, Sr., as the man who mailed the baby bonus cheques and would always get a huge round of applause.
For the first 30 years or so, Newfoundland was a have-not province. Ontario transferred hundreds of millions of dollars per year to ensure Newfoundlanders enjoyed a standard of living relatively equal to the rest of Canada: equalization. For a time, Newfoundland’s economy boomed as a result of offshore oil, and it was one the wealthiest in Confederation. Even now, the 2017-18 fiscal transfer to Newfoundland and Labrador will only be $734 million for a population of approximately 530,000. New Brunswick, one the founding four provinces of Confederation, has a population of 750,000. The 2017-18 fiscal transfer is nearly four times higher than Newfoundland’s at $2.8 billion.
Clearly, Newfoundland has become a long way since joining Confederation. The days of grinding poverty are long over. Over the past decade when surveys are taken of who are the happiest Canadians, Newfoundlanders are always in first place. Newfoundlanders were able to shake off the chains of British colonialism and entered into Confederation as equal partners.
Today, what separates Newfoundlanders from First Nations is that they are not governed under the Indian Act, and they are not subject to the dysfunctional bureaucratic system based in Ottawa. They have their own bureaucracy, and they receive reliable transfer payments based upon need. As it stands now, far too much of our First Nation communities are managing their misery. Far too many of our peoples live in third world poverty.
To recalibrate Canada’s role in nation-to-nation relationships, we need to go back to and understand the perspectives of Indigenous peoples when they made early treaties, including the Treaty of Niagara in 1764. Unilateralism has no place in treaties because treaties are about peace and growing, a bond of close friendship, a family-like bond of caring, sharing and generosity.
I might note that the notion of a peaceful country and a polite country doesn’t find its roots in colonialism or British imperialism. It finds its roots in the existing relationships, the original peace and friendship treaties. That’s where Canada gets this very eloquent virtue.
We have not yet seen the generosity of Canada that the representatives of your kings and queens promised us in 1764: early southern Ontario treaties, commitments made in 1850 in the Lake Superior and Lake Huron treaties, and the treaties 3, 5 and 9 involving the region of Ontario. It is an important truth for the history of Canada that these very important commitments were necessary to create the peaceful development of Ontario in 1867 as the boundaries expanded for the province through unilateral negotiates that impacted Treaty 3 and created misunderstandings between Crown governments about their roles with regard to treaties and First Nation people. The division of powers and the fight for powers have been detrimental to treaty rights across Canada.
A young B.C. province and a younger Newfoundland province did not want treaty agreements in their territories. Canada did damage by not standing up for the honour of the Crown after Confederation. Make no mistake that this means the early treaties are weaker arrangements than so-called Aboriginal titleholders in lands where the honour of the Crown was not upheld. The Lake Huron treaty and all treaties in Ontario are strong, living commitments to a great debt owed to Indigenous people in central Canada. As stated by our previous speakers, these earlier treaties, in their language and language barriers, certainly provided a base for complexity, challenge and conflict today that we need extra attention to work through.
Our timber, our gold and our fisheries in our territories were all to be shared, but unilateralism and provincial power struggles have played havoc with this relationship. An historically important case to all of Ontario has been heard over the last year. It has been webcast for treaty peoples to learn about the annuities agreement of the Robinson-Huron Treaty of 1850. This is about revenue sharing, and that is the next big reconciliation before governments in Canada.
Canada is the Queen’s government. This was the 1764 commitment by Sir William Johnson that was recounted by Lord Denning in the 1981 decision by the English court regarding treaties and the commitment that Canada was duty bound to uphold in our treaties.
We brought our treaties to the British courts when Canada was thinking about creating an independent constitutional order in Canada, and the British court said, “Your treaties will always be strong.” Canada is to stand up for the treaties against the provinces when necessary and against industry when necessary. This is all part of our agreement between nations. The principle of mutuality is important. The principle of respect is key to living within a treaty relationship. Reciprocity is an Indigenous principle about living sustainably in our territory, that is, to sustain your peoples forever. Reciprocity in relationship is also something we need to understand together.
The final principle is free, prior and informed consent. I will go into some detail here. The Royal Proclamation of 1763 looks like unilateralism as it is drafted without the free, prior and informed consent of Indigenous peoples. What the king’s representatives did was to bring that document into treaty council. Our peoples were brought in,the Gusweñta and Two Row Wampum. Sir William Johnson married into Indigenous society and knew the importance and significance of nation-to-nation relationships.
He sent British messengers far and wide to bring Indigenous representatives to Niagara in 1764. He followed protocol and ensured that the retelling of the past relationships and mutual understanding were in the treaty. He achieved free, prior and informed consent through a lengthy and costly investment in protocol and process in the 1764 Treaty of Niagara. This is the importance of understanding the treaties. The Jay Treaty, the agreement between the British and the U.S. of 1794, is part of the retelling of the treaty relationship for Indigenous treaty peoples in central Canada.
The imaginary border between peoples, between your nations, was not to impact the familiar and trading relationships between the Indigenous peoples, especially those along the Great Lakes and St. Lawrence. Many nations are intersected at this border.
There is a long remembered history in our peoples. Unilateralism is a great unveiling thread in our relationships. Our expectations are high regarding our participation in creating better relationships. It does involve treaties, but it does not involve forgetting or dishonouring the historic reconciliation made in the past. Free, prior and informed consent is a standard worth striving for, for all of us. It’s a standard for a great strong friendship and the ability of our nations to say yes and to say no within our own legal frameworks in the promise and commitment of Canada. It was achieved in 1764, and it can be achieved in 2018 and onward.
In the age of reconciliation, we need make the new nation-to-nation relationship work. We need to be equal partners in Canada, just as it was when the Europeans came to these lands. Most important, we need to deliver results on the promises and mandates that the government pledged to implement. For the sake of our children, we need to make their dreams of a better future become a reality today.
We need transfer payments deliverology right now. We need a land base right now. Then we can build our institutions, our own bureaucracies and our own economies. When we achieve self-sufficiency and self-determination, the First Peoples will truly be equal partners within Canada. Meegwetch.
Senator Gold: I especially appreciate your framing your remarks in historical perspectives. Canadians need to know the good, the bad and the in-between of how the relationship between the First Nations and colonial governments began, and that is very helpful.
We heard earlier from representatives of the Cree of their experience over many years with the Quebec government. That’s a situation with a large land base. As I mentioned in my question to them, it is a land base with resources that were of interest to the government. While there was no equality of bargaining, far from it, there was nonetheless relatively fruitful groundwork for what took many decades to be finally implemented. We compare that to the situation of many First Nation communities in Ontario and elsewhere that don’t have a big land base and whose rights have been considered to be extinguished whether under treaty or what have you.
How should such communities and government, whether federal or provincial, approach the building of a relationship based upon a nation-to-nation basis rather than the basis of a colonial conception of the relationship and indeed of law, when you have such a disparity in bargaining power? In a practical way, moving forward, what is your recommendation?
Mr. Day: That’s a quandary. It’s a complex issue. When we look at the age of this particular region in the country, the overdevelopment, the urban centres and the fee simple land matrix of tenure, we have to think beyond resource development being the only way to resource revenue sharing.
In the 38 per cent of Canada’s GDP in Ontario, there certainly is room for innovative resource revenue sharing models that consider the original commitments of sharing the wealth and bounty of the land, not just the cutting down of trees, the pulling out of ore and the processing to create precious minerals for market.
We need to look at the fact that in situations where you have, say, cannabis, we are as First Nations are certainly not being looked at as part of the equation. When it comes to consumerism, whether it’s commercial or residential tax, there’s a ratepayer penny that could be split to acknowledge resource revenue sharing across all of our regions. We are smart enough and we are fair enough. First Nations certainly have been fair enough to share. It’s time to innovate the resource revenue sharing model, not just to look at new development but certainly to look at places where we can share the wealth that continues to be part of the cyclical nature of a region’s gross domestic product framework.
Senator Gold: If I may just follow up, that’s an interesting and helpful path vis-à-vis governance. Given the disparity in current legal status, resources, power and the like, do you have any suggestions on the governance issue for those smaller communities who don’t have self-government agreements or whose rights to self-government certainly have not been recognized and would not be recognized?
Mr. Day: In the regions within Ontario, and I can only speak for my region, we are seeing more and more nation-building exercises that look at linguistic groups, shared territories and families. Before 1876 we never had reservations. In the Robinson-Huron Treaty of 1850, small pieces of land were set aside that would remain First Nations lands, but there were shared territories. We were under the impression that we would share these lands. I believe that’s where the discrepancy comes in.
We have the ability to aggregate our own expertise to bring to bear traditional customs and value systems in terms of how we used to govern. We have the Three Fires Confederacy with very elaborate trade networks across what we now see as the U.S.-Canada border. We have those to our avail. If you think that a northern community doesn’t have a concept of its own governance and its own communal laws, you’re wrong. They do. Governments need to recognize that those laws and the potential for self-government in fact exist, even though they may not appear to.
Senator Doyle: I was extremely interested in the comment you made about Newfoundland when you compared it to some of the current problems you have. You were spot on because I think Newfoundlanders should be able to easily understand how frustrating and how difficult it is to deal with the federal government on issues that it controls, especially when it comes to resources and those kinds of things. I think of our fishery and the problems you’ve had in certain parts of the country with your fisheries claims as well.
In our case, the federal government’s control of the fishery turned into total ownership. They used the fishery to get good trade deals on cars coming from other parts of the world, especially Europe. As a result, outlandish fisheries quotas, were given to foreign countries. In the end, it turned out our fishery was raped and killed. One of the most lucrative fishing areas in the entire world, the cod fishery along the Grand Banks of Newfoundland, was actually decimated to the point where 30 years ago the federal government shut down that world class, lucrative cod fishery. It has never come back; it’s still shut down.
I wonder about the development of your lands and how the federal government interferes in many instances with the development of your lands as well. To what extent is there a power imbalance between First Nations and the Crown? After we joined Confederation, we got a lot of good things from Confederation. If you held a poll back in Newfoundland right now, people would vote to remain in Confederation. They would say that it was a great thing for our province and our country at the time, and well it was.
As time went on, there seemed to be a great power imbalance between the provincial and the federal governments that we certainly never realized at that point in time. It led to a lot of bad things. We could be a rich province today if we had control of our fishery in the same way as we have control over our gas and oil development.
Do you think there’s a great power imbalance between First Nations and the federal government? How does that affect your confidence in building this good relationship that we’re talking about? How does that affect it?
Mr. Day: Yes, the obvious answer is that there is a power imbalance. I believe that’s a very illegitimate power imbalance because of the treaties. Let’s face it: Canada would not be a country if it were not for the original treaties. This is what Canada is founded on. If that is the case and treaties are the points of recognition of that formal relationship, it’s just like any treaty or trade deal internationally. It has to be recognized as having equal power and recognition within a given treaty.
We have to go back to the treaties, which is where the solutions lie. Where we’re seeing the imbalance on the ground play itself out, all you have to do is look at last night’s leadership debate in Ontario. The three major parties actually talked about their policy platforms. They were chattering against each other. Not once did they mention First Nations issues? There was no mention about the Indigenous portfolios they’ve all touted that they have.
The imbalance plays itself out in the politics, but it plays itself out in the formal arrangements. Let me give an example. In recent months, the federal government has been hard at work in trying to work with the U.S. and Mexico on NAFTA negotiations. With all due respect, that was a misstep on behalf of our First Nations. We’re not advisers to governments. That’s giving acknowledgement to the imbalance, and that’s playing into the imbalance.
Let me tell you what I mean in a practical sense, Senator Doyle. We have a much greater stake in Ontario’s energy policy framework and business. We recently became part owners of Hydro One. We also have a much greater stake in generation projects. First Nations are not just stakeholders. We’re owners and operators of major energy systems in Ontario. It stands to reason, if we’re part of major business, if we have investments, if we are First Nation governments, and if we’re recognized as nations, we should be at the trade table when it comes to trade negotiations inside of Canada from province to province? I dare say, and I am convinced, that we belong at the table when it comes to how Ontario buys and sells electricity to manage its electricity portfolio in the markets.
The trade imbalance is real. We need to have governments that are quite prepared to have us at the table to discuss, to be part of those negotiations and to be decision makers. There’s nothing preventing it. It can happen today, and that’s how we fix the imbalance.
Senator Doyle: It’s good to hear that you are confident you can develop a new relationship between First Nations and the Crown as equal partners, and that you can go forward and get the job done.
Senator McCallum: I wanted to touch on unilateralism because that is something I’ve been raised with and lived it, as have many people. I’ve worked at the community level for about 40 years as a health professional. We met with the government. We keep bringing up the unilateralism, but essentially it makes all the decisions for us without taking into account what we bring to the table.
What will it take to change this mindset? How can parliamentarians, including senators, help in this process? As well, how do First Nations get to the table?
Mr. Day: I really love this question, and I am glad that you’re taking it from the perspective of health, because health is probably the greatest manifestation of the inequity we face as Indigenous people in the country. High mortality rates, high rates of diabetes, mental health and addiction are indicative of colonialism. We need to fix the unilateralism that is well played out in the colonial relationship with our people. That’s the first point.
From the perspective of health, then, let’s look at a bit of an example that I’ve learned about in the last three years. I am the national portfolio holder on health at the Assembly of First Nations. I took on that file because I saw the poor health conditions of our people. I saw it as a way to dig in and focus on a place where I might be able to contribute and learn.
I learned that First Nations, Metis and Inuit people are not at the table. When you look at the Canada Health Act and the health accord negotiations, yes, we’re given some slim acknowledgement. Perhaps we are even allowed to come into a meeting the day before the real meeting takes place, but the reality is that we’re not part of the federal family. This where unilateralism becomes the norm. The political invisibility we experience because we’re not formally part of that relationship manifests unilateralism across the board throughout an entire health care system.
We have been trying to give our presentations to the Federal/Provincial/Territorial Ministers of Health. We’re finding ways to give proper proposals in terms of the gap that exists and how we may be able to work together. One of the things you may know about in Ontario is that under the Kathleen Wynne government there were substantive efforts made to cross jurisdictional boundaries. They actually made health and long-term care in our communities, and they simply didn’t have to do that. They’re making that effort and trying to find ways to enter into new relationships through new funding agreements which the provinces will pay into.
Here’s the fly in the ointment with that arrangement. We will never be able to sustain political will because every party has different political ideologies. Just like Canada, the provinces and territories have statutory certainty within legislation, we need to ensure that First Nation health equity is backed by legislation. That’s what we’re looking at. We need to ensure that we deal with unilateralism by making sure laws are put in place.
I am not talking about laws imposed upon our people, but take, as an example, the Canada Health Act that has five criteria which suggest how the federal government is able to get those transfers to the provinces and territories. Those five criteria are the benchmarks by which the provinces and territories claim federal transfers.
The Canada Health Act can change. You could open up that piece of legislation to include us and to start creating benchmarks of First Nation health equity in our country. It will take an exercise of figuring out what are the formal mechanisms within the current legislative frameworks. It will mean our coming to the table because First Nations will certainly not want unilateralism in the development of legislation.
Senator Patterson: Thank you very much for the thoughtful, helpful presentations. We toured northern Ontario, and some of those remote communities are really struggling with no sources of revenue and very poor lands. We learned about the failure to honour the treaties you described. It’s very important that you brought that focus to us today.
I am wondering about two things. First, what’s the way forward to develop respect for those treaties and give them the intended meaning when they were signed? Is there a process you’d recommend to get us there as we work toward a new relationship?
My second question is much more locally focused. You mentioned the addition to reserve process and Attawapiskat’s frustration with the seven-year stalemate. Our committee did a study of addition to reserve, and we found very frustrating the highly complex and time-consuming bureaucratic approach that it seemed to entail. I remember there were pages. It was a completely overwhelming process.
From the local point of view of ATR and from the much bigger point of view of giving life to the treaties and their true intent, how do we get there? What is the fix?
Mr. Day: First of all, it is important to underscore one of the most critical challenges we’re faced with today. Governments cannot work with us in a top-down model. The AFN and the Chiefs of Ontario are two examples of very important organizations that are coordinated and lobby organizations, but they’re not the rights holders. There’s an understanding of who holds the rights at the ground level, but government in its collective intelligence as an institution doesn’t recognize that the rights holders are on the ground. It has to be clearly set out that there has to be a new way of doing business.
I believe much of what we’re faced with today are challenges with regard to dishonouring the treaties. There needs to be a revisiting of any studies from the past that looked at this area. We need to look at international studies as well that give recognition to treaties and best practices that can be employed in a new way forward in Canada as to how to advance the treaties.
Treaty commission models have begun to develop across the country that are working to help create much more education and awareness, and to give people a much better sense of where you are and what is the history. Nobody would disagree that mandate only goes so far to resolving the issues we’re faced with today. Treaty commissions and exercises like them need to move beyond. We need action plans. We need measures of accountability.
Going into your second question with regard to the ATR process, these are a crossover of lands set aside under subsection 91(24) in recognition of treaty rights. Within that scenario there’s a myriad of legal complexities and technical responsibilities of the federal family to sort those things out; but First Nations often suffer because governments aren’t working together.
It is important, if we are to look at treaty recognition, that we need to put new mechanisms in place that move beyond education and awareness to action. Every region has its own issues, whether it is resource revenue sharing, whether it is addition to reserves, whether it is protection of the environment or whether it is annuities. There are solutions, and I think Canada and the provinces can go much further to create formal processes and mechanisms to actually implement treaties.
With regard to the ATR process, this is just an example. If there were a commitment by the federal family to say that we’re both complicit in the dishonouring of the treaties, I think the treaty region representatives and First Nations communities would sit down with them to figure out the key issues and come up with an action plan. I think those results could happen, and I think they need to relatively quickly, given the fact that if you look into the Far North there will be much more complex challenges. Our First Nations like the Matawa First Nations and the Ring of Fire are quite determined that governments will not drive that agenda. That’s their territory. I suspect that you will have a very difficult time on your hands if unilateralism comes into play. The First Nations in the North will certainly expect something much higher in terms of a relationship.
Senator Patterson: We just heard from the Cree of northern Quebec how they’ve built resource revenue sharing and participation in the regulatory process out of their modern treaty. How are things going in Ontario with revenue sharing? I know Bob Rae had been working in the Ring of Fire and it is certainly an issue there. Is the Province of Ontario open to revenue sharing like Quebec seems to have embraced, at least with the Cree?
Mr. Day: Ontario has made a commitment in the political accord that I entered into with Premier Wynne when I became Ontario Regional Chief, but over a three-year period we’ve seen the yardsticks move a bit in the last two months, just prior to the writ dropping for the Ontario election. It’s rather unfortunate that we were not able to see an Ontario government put action to commitment. We certainly need to move well beyond. No, I don’t think that the outcomes in Ontario are where they should be.
I want to give due respect to our First Nation communities that have pushed the agenda on resource revenue sharing, but I need to say that our First Nations deserve a lot more than the royalties that come off of a tree when it’s cut down. There’s an economic cyclical nature of the gross domestic product in Ontario. We need to ensure that we’re part of the larger context of the full revenue stream. We will be the business players at the table in most cases when it comes to our territories if there are innovative ways to look at resource revenue sharing that take a portion of all revenues in Ontario and allow First Nations to participate in creating better health, better education and a better economic framework in a way where is equity drawn from resource revenue sharing.
The Chair: Before we move on to second round, I’d like to ask a supplementary question with regard to resource revenue sharing.
You indicated that under the peace and friendship treaties that the First Nations saw sharing the land for the mutual benefit of all. In Saskatchewan, there’s a treaty elder’s book that talks about giving up the land only to the depth of a plow.
My first question would be: Is that sort of understanding also in the peace and friendship treaties?
My second question would be: In 1930 the Natural Resource Transfer Act was enacted which gave control over the natural resources to the provinces. Has any First Nation challenged that act, because that was done without any consultation, informed consent or anything like that?
Mr. Day: Although I have no mandate to speak on it, I will look at the 1930 NRTA only to say that the First Nations are subject to the imposition of the NRTA. I’ve often heard that there is pushback constantly. That is the Achilles heel of any resource revenue sharing that is meaningful to First Nations in those territories and those provinces under the NRTA. I believe that there’s always an ongoing push, but there’s always an ongoing willingness by First Nations to move beyond that struggle.
Chief Bellerose, in the potash mine arrangements, is looking at ways of extending the regulatory framework into the communities. In that way they can participate in resource development and in making sure those projects are participatory to them.
With regard to the pre-confederate treaties, you have to understand that the time or the era is much different. In many cases, the wage economy was not as prevalent as it was in the later numbered treaties. There were a lot of staples, a recognition of trading and a sharing of land. The fur trade obviously became the basis for a lot of the struggles. It also became the reason for the peace and friendship treaties when it came to conflict and war.
Our people definitely see the interpretation today being: If we have to ask who benefits from the treaty right to health today, yes, we have the medicine chest clause in Treaty 6, but that is implied right across the board. What I mean to say is that we see with the sharing of wealth and the creation of institutions and resources in the area of health and education today that the mainstream has basically been able to draw from the treaties and is able to enjoy those things today, whereas our First Nation people are treated as second class citizens living in third world conditions because we’re under a framework that doesn’t allow us to equally share. Again, the absence of equalization is certainly the absence of recognition of sharing in those earlier peace and friendship treaties as well.
Senator Gold: This is a comment and a pitch. I want to thank you because you’ve pointed out to us, as both Indigenous and non-Indigenous legal scholars have pointed out, how the original treaties, far more than the British North America Act or the colonial laws, are the foundational documents for the creation of the country as Canada.
They also provide the deepest understanding of what the proper relationship between the Government of Canada and Indigenous people should be, and that is nation to nation. I agree that we have to move beyond reconciliation to action.
Action has to follow or be built upon political will. Political will depends in our democratic system upon popular support. Popular support requires understanding and a desire for change, and that requires knowledge and education. Tragically, all Canadians or most Canadians are ignorant of our history and/or have a somewhat distorted version of our history.
Here is the pitch: There are 1,000 books to read about this, but I quite recently read a wonderful book by an old friend and mentor, Professor Peter Russell, called Canada’s Odyssey. I recommend to anybody watching us this marvellous book that tells the story of Canada, includes important knowledge and is expressed in an accessible way. It’s not a fancy academic book. It’s a story of Canada and the story of our relationship with First Nations and Indigenous peoples. That’s a good place for us all to start at least building the knowledge upon which we can build the political will with which we can then take the action to move toward a proper nation-to-nation relationship.
That’s it, chair; I am done my pitch.
Mr. Day: I’d like to answer that because I think it’s really important because it’s one of the, “How do we do this now” questions, right? That’s legitimate. I believe there are answers and there are ways forward. Just think of Canada 150. Look at the investment that was made to bring to bear a milestone for a country that is 150 years old.
This land and the relationship with Indigenous people are far older than that. What essentially was created was a vacuum of identity. We need to question that. Let’s take the statement or the notion that nations make treaties, treaties don’t make nations. When you start to have that discussion you realize in the context of the provinces that the provinces are not nations. When it comes to the PC leader, who calls himself Ford Nation, it’s a wake-up call in the country.
A discussion or a dialogue has to happen on nationhood that is very important to fixing Canada’s broken identity. Canada has a broken identity right now based on racism and on discrimination. Yes, there are positive things for the mainstream, and Canadians will say, “I am proud to be a Canadian because of our role in the United Nations.”
Where did that come from? Lester B. Pearson was a parachuted MP into our territory up in the Robinson-Huron Treaty area. He visited our community. He had a strong relationship with our chief and our community. It was those value systems and those relationships that he was able to bring into the discussion of what peaceful nations would do around a table now called the United Nations. Canadians need to return to this very critical discussion. We need to move from discussion to a national dialogue on nation to nation. This should not take place in a vacuum of our First Nations organizations and the federal and provincial governments that want to participate. This is a Canadian issue, even if you are a new immigrant. We’re now seeing much more opportunity to understand who the first people are here and what the history is.
There is an unlearning to do, and damage has been created that has underpinnings of discrimination and racism that will only be corrected through a national dialogue on what nation to nation is. It’s incumbent upon the federal government in the country, because it has the mandate to honour treaties and has committed to nation to nation, to include Canadians in the discussion instead of doing it behind closed doors where the federal government’s legal scholars look at and say, “How do we best do this to maintain to unilateralism?”
To your point, I believe it’s beyond just reading a book. I think things can be done to create institutional perspectives and approaches to a nation-to-nation dialogue in Canada.
Senator McCallum: I believe political will also depend on law. My question is: How critical do you think the UN Declaration on the Rights of Indigenous Peoples is in the moving the agenda forward?
Mr. Day: It’s very critical. The fact that I am 50 years old today, the fact that I am before this committee and the fact that Romeo Saganash’s Bill C-262 is going forward for third reading today are indicative to me that I am at the right place. Indigenous people across the world have pushed this movement forward. This country being one of the last ones to endorse it certainly says we have work to do. The fact that this declaration is now before the House of Commons tells me we’re at a good place.
The UN declaration is one broad instrument that recognizes the sovereignty and nationhood of Indigenous peoples across the planet and our best practices and tools. There is also a collective transparency. As we continue to utilize those instruments in the international arena, we will continue to build benchmarks of accountability and transparency about the relationship here. It is only then we’re able to keep ourselves in check when it comes to dealing with issues of discrimination and racism within the structures today.
We need the UN declaration. When it comes to the Pan-Canadian Framework on Clean Growth and Climate Change, the provinces and territories have so much control when it comes to the globally impacting issue of climate change that they seem to be able to step in front of us in the domestic context. In the international contest the provinces are only recognized as substates. We need a benchmark and a way to put checks and balances in place in terms of how Canada formally recognizes us in a Pan-Canadian Framework on Clean Growth and Climate Change.
It will be important, and I certainly support Romeo Saganash’s bill. I will be seeking re-election as the Ontario Regional Chief because there are exciting opportunities to advance our nation’s interests through working with Canada on things like moving the UN Declaration on the Rights of Indigenous Peoples forward.
The Chair: We have come to the end of our time. On behalf of the senators, I would like to thank Ontario Regional Chief Isadore Day for his testimony and for sharing his thoughts and wisdom with the committee.
(The committee adjourned.)