Proceedings of the Standing Senate Committee on Legal and
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.
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Senator Moore: Did you use the same engineering firm as the people in
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
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
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
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
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
Mr. Fox: We live on a reserve. There are 48 reserves in the Nishnawbe-Aski
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
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
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
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.