Proceedings of the Standing Senate Committee on
Issue 10 - Evidence - Meeting of November 8, 2006
OTTAWA, Wednesday, November 8, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 6:16 p.m. to examine and report on the
nature and status of the Government of Canada's Specific Claims policy.
Senator Gerry St. Germain (Chairman) in the chair.
The Chairman: I call the meeting to order.
In the spirit of Chief Clarence Louie, from Osoyoos, British Columbia we start on time. Good evening. It is my
pleasure to welcome you to the Standing Senate Committee on Aboriginal Peoples. I am Gerry St. Germain from
British Columbia and I am privileged to be chair of this committee.
Today, our committee continues its special study on specific claims. The committee intends to examine the federal
specific claims process with a view to making recommendations to contribute to the timely and satisfactory resolution
of First Nations' grievances in that matter.
We are privileged to have Chief Malloway from the Sto:lo Nation, B.C. He was here giving evidence last evening
and we are glad that he is able to come this evening.
I will make a special mention because I have the privilege of being a senator and working in the Senate. It is not
often that we get the opportunity to pay credit to those who assist us in our daily duties.
We have with us tonight, Aline Fontaine, a page in the Senate, and I believe she knows our key witness here tonight.
I want to thank you for coming, Alain, and thank you for all your help. You do serve this committee from time to time
and I thought it only proper to give you mention.
We are pleased to have with us here this evening the National Chief of the Assembly of First Nations, AFN, Phil
Fontaine. He is accompanied this evening by the AFN legal counsel, Ms. Candice Metallic.
Phil Fontaine, National Chief, Assembly of First Nations: Thank you for the opportunity to present here this evening.
Ms. Candice Metallic is a lawyer from Restigouche, New Brunswick and one of our important officials with the
Assembly of First Nations.
Before I refer to my written text, I want to make three points: First, to thank Senator St. Germain for referring to
my niece, Aline. We are proud of her.
Second, it is not in my written presentation, but I wanted to point out to the committee that for a short while I
served as chief commissioner for the Indian Specific Claims Commission.
Third, there has been much concern expressed about the significant increase in the number of claims that have come
before Canada. There are those who would argue that this has become an industry and that these claims are frivolous
and lack merit. The fact of the matter is that from approximately 1927 to 1952 First Nations were not allowed to retain
the services of legal counsel to pursue land claims. There was really no ability for First Nations to bring forward
It should not be a surprise that there were few land claims that were brought forward in that period. Since that
restriction was lifted through the amendment to the Indian Act, and with policy shifts of successive governments, First
Nations have brought forward an increasing number of claims before the country. It is not because this has become an
industry. We are talking about legitimate claims that need to be resolved in a fair and just way.
That is the reason we accepted this invitation to be before you this evening, because we want to add to the
discussion. It is an important conversation that we are having here this evening, and we hope to add value.
I want to begin by providing necessary context for my remarks. Since 1970, there have been approximately 1,325
claims filed; this number is rising significantly each year and is expected to continue in the foreseeable future.
There are 1,325 claims in the system, yet less than eight claims are settled each year. At this rate, it will take about
130 years to resolve the current backlog. In other words, we will be finished dealing with the existing backlog by the
year 2136. Realistically our great-great-grandchildren will be finishing this important work. This is an agonizingly slow
pace for our people, and a serious liability for Canada.
Modest estimates place the federal government's liability to First Nations for unsettled specific claims at over $1.5
billion. Resolving the current backlog of claims in three years would, therefore, require a financial commitment of
approximately $500 million per year; or $300 million per year over five years or $15 million per year over 10 years.
The current system is a serious impediment to progress. What are the principal shortcomings that must be addressed
if we are to make real progress in resolving outstanding claims? One of the most significant deficiencies in the current
system is the utter inadequacy of resources allocated to this work.
There are shortfalls in three key areas: Insufficient bureaucratic resources that prevent Indian and Northern Affairs
Canada from expeditiously assessing claims, which created the backlog; compensating First Nations for damages
suffered as a result of breaches of lawful obligations by Canada; and the lack of adequate resources made available to
First Nations to prepare claims and participate in the claims resolution process.
The cost and affordability of resolving specific claims is often cited by Canada as one of the reasons for the lack of
progress. This argument does not hold up to scrutiny. The first point is that First Nations did not create this problem.
The mountain of unresolved specific claims in Canada is not because of any action or inaction on the part of our
people. Specific claims arise from inaction on the part of the Crown not fulfilling lawful obligations to First Nations.
Canada vigorously pursues citizens who owe debts to the Crown. In the same manner, First Nations will vigorously
pursue debts owed to us by Canada for non-fulfillment of lawful obligations.
That brings us to a second key point. Specific claims are lawful obligations or debts that are owed to First Nations
by the federal government; they are not discretionary spending. Yet federal officials treat specific claims as a program,
which in turn is used to rationalize or justify discretionary spending by Indian and Northern Affairs Canada.
For example, in discussions with federal officials, the Assembly of First Nations has been asked to see how we view
the trade-off between federal spending to resolve specific claims relative to the spending required to address First
Nations' housing shortages or health problems.
Here is our response: There is no discretion available to the Government of Canada when it comes to resolving
claims. Where Canada has not fulfilled its lawful obligations and breached its fiduciary duty to First Nations, it must
provide restitution. These expenditures are mandatory in order to restore First Nations to the position they would have
been in had the breach not occurred.
Compensation for past wrongs is a fundamental principle of the Canadian legal system. First Nations are no less
entitled to compensation for wrongs committed against us by the government than any other individuals or groups in
This brings us to our third key point: Affordability is not really an issue. In our view, this is merely a smoke screen.
It is clear that there are resources available to expeditiously resolve, in a fair and just manner, specific claims by First
For example, between 1996 and 2004 Canada recorded significant financial surpluses, which were used to pay down
the national debt at a rate of over $8 billion per year. This year, it is $13.2 billion, and next year, if circumstances hold
as they are now, it could be approximately another $13 billion.
If the federal government had applied even a fraction of the $8 billion that I have just referred to toward the
resolution of specific claims, we would have seen significant progress.
The real issue is not affordability; it is political commitment and allocation of resources. If we look at the limited
federal resources allocated to resolving specific claims, compared to the resources allocated to other spending
envelopes, we see clear evidence of the federal government's lack of political will to truly resolve specific claims. I am
being inclusive when I refer to the federal government's lack of political will, because we are dealing with a matter that
has been with us for years and years. I am referring to successive governments.
The question is not whether we can afford it, but how much we owe and how we can allocate resources to pay First
Nations for these outstanding debts as expeditiously as possible. In spite of the legal duty to resolve claims and the
financial ability to do so, the Government of Canada continues to defer claims resolution to some future date. The
government is abandoning our people and shackling future generations with this debt. Delay, deferral and foot-
dragging have been allowed to continue for far too long. Justice delayed is and justice denied. The honour of the
Crown is at stake. It is time for Canada to take honourable action by committing sufficient resources to bring down the
mountain of unresolved specific claims.
This power imbalance leads us to the second major problem with the existing process: its lack of impartiality and
lack of independence. At all stages of the system, Canada is judge, jury, and, too often, executioner in the claims
process. The Specific Claims Branch unilaterally decides whether to accept claims for resolution; determines the merits
of the claim; whether compensation is payable; and if so, the quantum of compensation payable. There is no recourse
to dispute resolution mechanisms. As many observers have pointed out, including the Auditor General of Canada, this
is a clear conflict of interest. This should not be tolerated in an institution of a supposedly democratic society. This is a
fatal flaw in the existing process, and it must be excised.
Lacking a truly fair and just claims process, the only legal recourse available to First Nations is the courts; but this is
a costly alternative. It costs all of us a great deal of money, with the government using taxpayers' money to fight First
Nations. It costs us all a great deal of goodwill. It is also unfair, because most First Nations lack the financial resources
to seek redress through the courts. Furthermore, when First Nations use the courts, the Crown relies on technical
defences, including statutory limitation periods to defeat such claims. Claiming technical defences against the Crown's
lawful obligation is unconscionable, particularly in the light of the history of the Indian Act, which made it illegal for
First Nations to engage lawyers to pursue their claims through the courts.
Now that we understand the real problems, how do we move forward? I want to present some recommendations
that I hope the committee will consider seriously in its deliberations. We are keen to work with this government on
implementing measures that will benefit all of us — First Nations, the government and Canadian taxpayers. The
federal government ought to commit to reducing the current inventory of specific claims in three to five years.
Allocation of adequate financial resources to evaluate and resolve claims is another key to resolving the current
backlog of unresolved claims. These financial resources are required to adequately fund our participation in the
specific claims resolution process; to adequately resource Indian and Northern Affairs Canada and Justice Canada to
expeditiously assess claims; to adequately compensate First Nations for federal breaches of lawful obligations; and to
afford First Nations an opportunity to pursue litigation of unresolved claims as an alternative option to proceeding
through the specific claims process.
As noted previously, affordability is not a legitimate excuse for the lack of progress in resolving specific claims. Even
a small portion of the $8 billion used to pay down the national debt would take us a long way without compromising
Canada's fiscal fitness. Earlier discussions among First Nations and federal officials suggested that the sum of $500
million to $1 billion per year is required to produce satisfactory progress in resolving outstanding claims.
The AFN is also calling on the Auditor General to review the comprehensive and specific claims policies of the
federal government. This should include consideration of how national economic statements and accounts can better
reflect the reality that specific claims are part of the national debt that has been allowed to grow in a largely invisible
and irresponsible manner.
The debt that Canada owes to First Nations could severely affect our international financial reputation if it were
widely known. We would also suggest that Parliament could enact legislation that specifically alters limitation periods
in respect of the specific claims. Currently, the limitation period for specific claims brought in the courts depends on
the limitation statutes in the province where the claim is located. The provinces should revise these statutes so that
specific claims are no longer barred. Some provinces have modified their limitation statutes to facilitate the litigation of
residential school abuse claims. Similar steps should be taken with respect to specific claims.
Establishing an independent claims commission is essential to any restructured claims resolution process. A key
long-term solution for resolving the current backlog of specific claims is for constructive and collaborative work
between Canada and First Nations. We can improve existing legislation, which addresses the problems in the current
process and clears the route to the effective and efficient resolution of outstanding claims. Today, as National Chief, I
call on the federal government to formally commit itself to working with us, the Assembly of First Nations, to produce
a workable system for the independent and effective adjudication of specific claims. Work has already begun and, yes,
there is a Specific Claims Resolution Act that has not been brought into force. Let there be no misunderstanding that
First Nations remain adamantly opposed to the Specific Claims Resolution Act in its current form.
Our concerns are long-stated and well-documented. They include, but are not limited to, the following: the proposed
new body is not independent; Indian and Northern Affairs Canada and the federal cabinet maintain unilateral control
over appointments and reappointments; the claim limit is far too low and will exclude too many claims; the definition
of ``specific claim'' is too narrow in scope; and resources available for settlement remain inadequate. However, with
modest amendments and a clear fiscal commitment, it could be possible for First Nations and the federal government
to reach consensus on mutually acceptable revisions to the Specific Claims Resolution Act.
In conclusion, there is a positive opportunity before us to work together in partnership to improve legislation that
removes the obstacles to progress and carries us forward. Claims have the potential to become the flashpoint of conflict
and confrontation. Our people have been waiting for generations and some will not wait any longer. We need not look
too far to see the evidence. We want the federal government to work with us to bring down the mountain of claims,
level the playing field, and build on that foundation of fairness and partnership. If we truly believe that this nation,
Canada, is fair and just, then this is the right way and only way to proceed.
The Chairman: Thank you for the excellent and well-thought-out presentation. When I talked to the Minister of
Indian and Northern Affairs this morning, Jim Prentice, he reinforced the fact that you should be here, because of the
expertise and knowledge that you bring on this file.
Apparently, over the last 10-15 years, specific claims have gone from 300 in total to in excess of 800. I told the
minister that this committee has undertaken the study because there is a need, which he recognizes. I suggested that
government would have to re-tool the system to make it work. If we can come up with a good, strong, concise, precise
report with strong recommendations, I hope and pray that we can get this process underway, because it is certainly a
case of, as you so adeptly put it, justice delayed is justice denied. These are outright breaches. I do not feel Canadians
fully understand that this is part of the national debt. This is a contingent liability on the balance sheet, and it has to be
rectified and treated in that particular manner.
I listened carefully to your presentation and having studied the joint task force recommendations, I am encouraged.
You have said that by working together you feel Bill C-6 could be made workable and acceptable to our First Nations;
is that correct?
Mr. Fontaine: Mr. Chairman, just to reiterate my point in the presentation, Bill C-6, as it is, is too flawed a piece of
legislation and we have never supported it being brought into force. That is not to suggest that it is not fixable, but it
will only be fixable if all the parties in the House accept the responsibility to do what is right, agree to consider
appropriate amendments to the legislation and to fix those problems that we cited here this afternoon. If there is the
will to do that, the success of that process will be better guaranteed; if we are involved in the process.
If you examine the work we did through the joint task force, that is one of the best examples of a cooperative and
collaborative undertaking, with both parties engaged in the process as equals. As a result, the report and
recommendations that flowed from that process were, in my view, an outstanding piece of work.
However, the response from the government was less than outlined in the report. We would suggest that the joint
task force report would be a good reference to point to any work that — we hopefully agree — must be taken to bring
forward appropriate amendments to Bill C-6.
The Chairman: I asked that because some bills are so flawed that they are not fixable; I wanted the reinforcement of
that. It may assist us in expediting the process, because the legislation is there. If we could just amend it, it would be
one way we could proceed, which would be quicker than starting from scratch. I know the concerns that our First
Nations people had with Bill C-6, because I was spoken to by several from the West Coast right through to the East
Coast on this.
Senator Sibbeston: I want to thank you, Mr. Fontaine for coming before us. Over the last several weeks, in studying
the issue of specific claims, we have had the benefit of hearing witnesses including: First Nations representatives;
researchers and legal counsel from most parts of the country, Saskatchewan, Manitoba, Alberta, B.C. and Quebec; and
we have had privilege of hearing the minister, who had 10 years' experience in this area. We had a minister today, as
part of the federal government, that is quite knowledgeable; and in his appearance before us, he seemed determined to
do something about the matter.
Of course, we have you tonight, the representative of all the First Nations in the country, who has given us your
views. I appreciate the work that has been done in your presentation, a tremendous amount of detailed information
and the recommendations provided therein.
There has been a tremendous amount of work done in this area. In the 1990s, there were two task forces, one in 1992
and one in 1996, that produced the work, but it seemed when the time came for the federal government to enact
legislation, they did not comply, listen or abide by the task force recommendations. I know that when we were dealing
with Bill C-6, we were hamstrung by the fact that the government was prepared to go a certain distance. At the time,
we thought we were doing the best we could in making incremental improvements in the act before us. We eventually
passed it, and it was never proclaimed.
In considering possible solutions, we have heard from many witnesses that do recognize the great delays that exist in
the system, the fact that you are going hat in hand to the federal government, that they have their own lawyers, that it
is asking the federal government eventually to decide against itself. The system is fraught with a lot of advantages on
behalf of the federal government, so how can Aboriginal people win in that setting?
People have said that there needs to be an independent forum, arm's length from the government, that can deal and
adjudicate all these issues in a real way.
We come back to Bill C-6, the provisions in there and the system that is provided for in the task force. This is where
we will focus our efforts in the next few weeks as our study dies down. You noted some of the areas that need to be
improved, and if we can make these changes, then hopefully we can have something that would be more acceptable.
I did hear from you that Bill C-6 could be amended and fixed, so that it can serve as the solution to this whole area.
Would you tell us again, as definitively as possible, the main areas that you consider to be flawed in Bill C-6, and what
we can do to definitely fix it so that it would be acceptable to you?
I know there are issues such as the appointment process, raising the cap on the tribunal, and the time limit the
minister should have in order to make a decision — at the moment it is timeless; the minister can take forever in
deciding whether the claim is valid or not.
Mr. Fontaine: First, I wish to point out that it is true Minister Prentice and I have had numerous discussions about
specific claims and what might be done to move these claims forward in a more expeditious manner. We have
considered various options, including working within the existing framework, with a view of tweaking the framework
to make it possible to resolve these claims in a more expeditious manner.
We talked about the appointments; there are a number of vacancies in the commission. There is the issue of
resources. It is pretty clear that there are insufficient resources because we are told, and this is not the first time we have
been told, that the department — here I am referring to INAC — has run out of money and we cannot consider any
more claims until the next fiscal year.
There are so many reasons that have been put to us that add up to a pretty cumbersome process.
In terms of the specific recommendations to improving the Bill C-6, I will list a number of these. Ms. Metallic and I
will be happy to discuss these with you.
Turning first to appointments and reappointments of officials, we believe there ought to be mechanisms in place as
contemplated by the joint task force of 1998 and through many modern land claims agreements to ensure that officials
are approved through a process in which the Assembly of First Nations and the federal government each have an
effective voice. This will ensure that the claims body is truly independent, impartial and avoids any actual and
perceived conflicts of interests.
There must be internal changes to Indian and Northern Affairs Canada to ensure that the federal government
cannot indefinitely delay claims through its own unilateral actions and in fact be financially rewarded for doing so.
Among the measures that could be taken would be to provide for defined time limits for each stage of assessing and
processing a claim.
I referred, in my presentation, to the definition of specific claims. There can be no arbitrary exclusion of claims that
qualify as specific claims under the current federal policy or under the jurisdiction of the Supreme Court of Canada.
If there are any initial monetary limits on access of claims to binding adjudication at the tribunal, such limits must
be high enough to at least ensure that the preponderance of claims have access and that claims above any initial cap
have meaningful access to the commission. The Canadian Alliance Party, the former Conservative Party, which was in
opposition at the time of the debate of Bill C-6, proposed raising the monetary cap from $10 million to $25 million.
There must be equitable treatment of claims above any cap. The goal to reducing the backlog of claims must be
realized in respect to larger claims no less than any other.
Regional equity is important as well. The system must be sensitive to the differences in the law, history and
circumstances affecting First Nations in different parts of the country, and the reduction of backlog must apply in a
reasonably proportional manner to all regions.
The rules must be fair to both sides. They cannot, for example, expect complete and full disclosure of the First
Nation's case without comparable commitments from the federal government, including providing detailed reasons for
any rejection of a claim or claims.
The Assembly of First Nations must be a partner with the Government of Canada in ensuring that transition from
the current system to the new one takes place in a manner that is efficient and fair to all claimants.
The AFN must be a full partner in the legislative review of the system with a view to further improvements. This
process should begin as soon as an acceptable version of the Specific Claims Resolution Act is proclaimed, rather than
waiting for a number of years. It should be noted that the former party, the current government, supported most, if not
all, of these points in its proposed amendment to Bill C-6.
I want to make several additional points here. As I noted, I was chief commissioner of the Indian Specific Claims
Commission. You could fairly ask me, why did I not speak to these issues when I was chief commissioner?
I want to point out that we were presented with an opportunity to do so. We did not fairly represent, in our
presentation to the standing committee, our experience and the broad experience that the Indian Claims Commission
possesses in terms of specific claims. When you talk about experts, real experts, the true experts in dealing with specific
claims, the Indian Claims Commission represents that experience and that expertise. However, they can only provide
fair commentary on this if they are prepared to present before this commission with the full depth of their experience,
and not be impeded by the fact that the Indian Claims Commission is an independent tribunal. That was the limitation
I brought with me when I appeared before the standing committee.
Senator Peterson: We can certainly sense your frustration in dealing with this. In just the short period I have been on
this committee, trying to come to grips with it has been overwhelming.
You talked about $500 million over three years, for $1.5 billion. To what does that relate? Would that cover those
1,300 specific claims or is it just a start? We are trying to get a handle on roughly how much the liability is. What
number are we dealing with here to get started?
Mr. Fontaine: Anything more than what we have now would be a good start, Mr. Chairman.
We have outlined our position. For example, in Bill C-6, the cap was $10 million. We figure a fair representation of
that would be consistent with recommendations from the government, which was then $25 million. That would be a
In terms of averaging out the cost of claims, we have done some number crunching and we figure this would allow
us to deal with claims at a much higher average, for example, than now, which is approximately eight claims per year.
We have cited the numbers. We feel that $1.5 billion is a fair representation of what is required, which is considerably
less than the figures being thrown around some years ago about the value of all the specific claims in the country. The
argument being made then, of course, was that if all these claims were to be resolved, it would break the bank. That has
never been our proposition. We want fair and just resolution of these claims. We are suggesting that $1.5 billion is a
fair starting point to resolving these claims. That is one point.
Another point is that it is extremely difficult for us around the table, including the best experts in the country, to
quantify the value of all the claims in the country.
I come before you today with that in mind, but suffice to say that our number is a fair starting point.
Senator Dyck: I will continue on the same vein of dollars. Has anyone calculated the amount of money that Indian
and Northern Affairs Canada spends annually hiring lawyers, staff and so on to look at specific claims? We have heard
from many witnesses that the process is inefficient and ineffective. Thus, much money is being spent annually to
support a process that is not working.
How much money is the government wasting per year compared to the money it would gain if it actually settled
more than eight claims per year? Do we know how much money is actually being wasted?
Mr. Fontaine: The point I made earlier was that the current levels being provided to Indian and Northern Affairs
Canada to resolve claims is insufficient, obviously, because that is one of the problems we have encountered year after
year. We are told that the department is out of money and that they cannot accept or resolve any more claims. It is
obviously an issue that has to be carefully considered to ensure that the department receives the resources it needs to
deal with claims, including making sure there are enough lawyers to handle all the claims.
Right now, we understand there are anywhere from 10 to 15 lawyers fully engaged in dealing with claims. That is not
enough. We are talking about approximately 1,300 claims, and over 300 of these have been validated by Canada. If we
are talking about how long it takes to get a response from Justice Canada on the validity of a claim, and then add the
years that it takes to resolve a claim, it is taking far too long.
Simply put, more money is needed. What would be a fair amount? We proposed a figure and would like to have that
number considered as the starting point.
Senator Dyck: To continue along that same vein, it has been suggested that adding additional resources will increase
the number of claims going through, which makes sense. However, we have heard that in many cases there is a lack of
consultation between the First Nations making the claim and the officials within the specific claims process.
Consequently, there is a lot of back and forth, which may be needlessly using up time and resources. Do you feel that
by adding additional resources, the process can actually be tweaked, as you say, to make it work, or do you think it
needs more than just additional resources?
Mr. Fontaine: Tweaking the current system will only work if everyone agrees that it would be impossible to bring
fair and appropriate amendments to Bill C-6. However, if there is goodwill and a serious commitment to supporting
amendments that we know will fix Bill C-6, then that is where we are coming from.
I would suggest that if there is a willingness to do that — and it is clear that the will of the House is in favour of
undertaking such a process — that we do so on the understanding that this is a process that will not take forever.
We understand that there is already a solid foundation to work from. We have the joint task force report and its
recommendations. We have Bill C-6. Though it has serious flaws, it has some elements that I believe can be fixed. That
is why we are suggesting that we amend Bill C-6. If we have a commitment to do that, then we are off to the races.
The Chairman: You mentioned that this whole process is treated like program funding versus retiring a debt. You
have recommended $1.5 billion and the setting up, I gather, of a sinking fund or a reserve fund to retire long-term debt
of the government.
I feel that the public confuses specific claims with comprehensive claims. Has there ever been a concerted effort on
the part of the leadership of the First Nations to clarify that these are breaches of trust; where fraud has taken place in
the case of Indian agents in the past, and highways, railways, and various other encroachments have taken place on
native lands without their permission?
We have to convince the minister — and I would like your opinion on this — that part of the annual budget is set
explicitly aside, so that if we do set up an independent tribunal, claimants will not have to run to the government and
end up at INAC, where INAC says: ``We have no money left. We have spent all our money this year.''
Do you feel that is too aggressive an approach, from your experience? I believe we need to do something drastic, as
far as making it known that this is not just an attempt to deal; the law has been broken and this is basically theft from
the First Nations people. Unless we put it in those terms, I do not feel that people will understand. They will say: ``Here
they go again. They want this and that.''
This is really unfair. Do you have a comment?
Mr. Fontaine: Mr. Chairman, you make some good points. We have always believed that one of the answers in the
resolution of many First Nations' issues is directly related to public education and information. It may be that we have
to do a far better job of educating and informing Canadians about claims, the nature of claims and why specific claims
You cited some examples of why claims exist. Canada has breached its fiduciary duty. There was outright theft of
land, improper and illegal surrender of land. In spite of the unfair process that currently exists, over 300 claims have
been validated and approximately 280 claims have been resolved in the last number of years. There is clear validity to
our position on claims.
In terms of public education, if the government is prepared to support such an undertaking, we would be more than
willing to do so. I have had opportunities to speak to this issue. I have talked about specific claims, comprehensive
claims, and the basis of claims. In many parts of the country, these are related to treaties. In other parts of the country,
in British Columbia, for example, we are dealing with Aboriginal title. These claims are different and distinct from each
other in a number of ways.
I would be willing to accept that kind of challenge. To make it work and to bring forward the kind of outcomes that
we want, we would have to work together. The obligation does not just rest on the shoulders of First Nations to
educate and inform Canadians. Canada has an obligation here also. We are talking about legal obligations. Canada
has a responsibility to educate and inform Canadians about the nature of claims, whether we are talking about specific
or comprehensive claims. We both understand and know that it is far better to do that kind of work in a collaborative
way. As I said, we would be willing to undertake such an initiative.
Senator Peterson: Do you have any suggestions as to the size of this independent tribunal? Would it be one, two,
three people? What suggestions would you have of who would make up the tribunal?
Mr. Fontaine: I will ask my legal counsel to respond to that.
Candice Metallic, Legal Counsel, Assembly of First Nations: It is laid out in our written presentation, and I believe
the national chief made reference to it. Regarding an independent claims body, fundamentally there must be some
independence. Perception of independence and actual independence are important to bring credibility to this new
One way to achieve that is by appointing commissioners or adjudicators. If we are looking at the specific claims
resolution, there is a commission side and a tribunal side. In order to establish any impartiality and independence,
those appointments need to be made jointly between the federal government and, I would suggest respectfully, the
Assembly of First Nations and the national chief.
To address any of the claims that are disputed in terms of their validity, I believe that the commission must be one of
a substantial size to deal with these. We do not need to create another point of delay in the resolution of these claims. If
we look to the Indian Claims Commission as an example, there are seven commissioners on that particular
commission, and I believe it takes two to five years to address any specific claims.
If we are looking at a substantial body, we may need approximately seven commissioners or tribunal or
adjudicators; and perhaps another seven to deal with the claims that are coming in if we are looking within the
structure of the Specific Claims Resolution Act.
Senator Peterson: I am trying to think of a way to streamline the process and not add a new level of bureaucracy to
it. I would see this group adjudicating after the claim has gone through. The claim comes in, is accepted and then it
would go to this group to come up with the final resolution. I would try to speed it up a little. Otherwise, it gets bogged
down at the judicial level and INAC.
Ms. Metallic: You are absolutely right. That is where we get the majority of the delays. One of our concerns with the
current construction of the Specific Claims Resolution Act is that those delays are not ameliorated by this piece of
legislation. It may be adding more layers on to that process. Then there is the fact that the minister can review and
consider a claim indefinitely; there are no time limits. Time limits are an integral part of ensuring that these claims are
processed as quickly as possible.
Considering the Specific Claims Resolution Act, the commission side would be to ensure that those claims are
assessed and evaluated in a timely way. Only those claims for which there is a dispute would go to the adjudicative
portion of the body. Those processes can be tailored, so that the claims are considered in a timely fashion.
Senator Dyck: With respect to the time limits of each stage, how do you foresee that process being initiated? How
would you set time limits? You would be saying to INAC, ``When you receive a claim you have X number of months to
look at it.'' What would the process be to put that sort of procedure in place?
Ms. Metallic: There are policies and procedures that can be developed that would set timelines for the consideration
of claims on behalf of the federal government.
We would prefer to see those in legislation, so that there is no discretion about changing them. However, they can
also be addressed through the policies and procedures of any independent body.
Mr. Fontaine: I wish to make a final statement. This has to do with your question. I do not know if I was able to
answer that as well as it deserves.
You are alluding to the fact that many Canadians are afraid of land claims. People have this real fear that if a claim
is settled, they will be dispossessed of their lands and their property, and rights that they enjoy will be taken away.
There has never been any desire or any interest on the part of First Nations to dispossess or deny someone else rights
that we should all enjoy.
The most recent example of that fear is the situation in Quebec City, where documents were recently uncovered.
Some private dealer had documents about the Huron claim related to Quebec. Premier Charest had to make a public
statement that no one would lose their home or be deprived of their rights. There is this unfounded fear on the part of
many Canadians that the resolution of claims means that they will be dispossessed or denied their rights. That is the
farthest thing from the truth. We all know that.
Your point about public education and public information, Mr. Chairman, is absolutely bang on. We have to
consider how we undertake this major initiative.
The other point I would make is that if one of the issues that matters most is the cost, I know it is possible to put
together a business case that will convince not just parliamentarians, not just the Senate, on the importance of
resolving claims in an expeditious manner. We did that with the residential school settlement agreement. We knew that
it was costing the government too much money. The process, as it was, was unfair and cumbersome. For every $1 being
paid out, it was costing the government $4 to administer. It was going to take something like 53 years to resolve all the
residential school claims that were before the courts and there were only 15,000.
The government came to us and said, ``We have listened to your arguments. We would be interested in seeing a
business case that sets out why your approach would be better and would save the government and the taxpayer
money.'' We did so. I do not want to overstate it, but I believe it was so convincing that they had to accept it. That is
not the point I want to make; rather that it was well done — we did it. We knew the numbers and we put them forward
in a way that was convincing. I believe the same kind of proposition ought to be considered for land claims.
A number of years ago, TIME magazine did a major piece on claims. It was a big story about the kind of money
First Nations people would have and the land that they would possess. I forget the exact number, but the article stated
that 15 per cent of the land mass of Canada would be transferred to First Nations if all the claims were resolved. I am
not convinced that was necessarily an accurate or true portrayal of claims. Major dailies have done pieces on claims.
These have not been the most effective or accurate portrayals of this particular matter either, which is one of the most
important challenges before the country. I believe we must do better. My commitment before this committee is that we
are prepared to see this through.
The Chairman: When the minister came through and gave evidence and answered our questions, I said that
expectations are extremely high with regard to him as Minister of Indian and Northern Affairs, because of the 10 years
of Indian Claims Commission experience that he brings to the fore.
We have never had a minister who has had his experience. We have had good ministers, such as Jane Stewart and
others with whom I have worked, but no one has ever brought the experience he has.
We have to capitalize on this. You will find the Senate committee will try its hardest to understand the problem and
make the recommendations as forcefully as possible. We would like to work with you. Hopefully, you can carry the
I know you have had access to the minister on many occasions. Hopefully, we can come to some resolve. I thank
you both for the excellent presentation and the candid and straightforward way that you responded to our questions.
Honourable senators, our next witnesses are from the Blood Tribe/Kainai First Nation from the province of
Alberta. The main presenter will be Ms. Annabel Crop Eared Wolf, who is Coordinator of the Tribal Government and
External Affairs Department, which is responsible for the conduct of research and negotiation of land claims. With
her, are Mr. Les Healy and Ms. Dorothy First Rider.
Annabel Crop Eared Wolf, Tribal Government and External Affairs Coordinator, Blood Tribe/Kainai: Mr. Chairman,
on behalf of the Blood Tribe we would like to thank you for the opportunity to appear before the Standing Senate
Committee on Aboriginal Peoples with respect to specific claims. We welcome the opportunity to put forward our
concerns and commentary on the policy and process.
The Blood Tribe is comprised of 10,000 members and has an existing land base of 547.5 square miles situated in
Southern Alberta. It is one of four nations that comprise the Blackfoot Confederacy, whose traditional territory
extends from the North Saskatchewan River in Alberta, near Edmonton, to the Yellowstone River in Montana,
U.S.A., and from the Rockies to the Great Sand Hills in Saskatchewan. The Blood Tribe, along with other Blackfoot
speaking nations, made treaty with the Americans in 1855 and with the British Crown in 1877, in accordance with its
principles of treaty making, Inistisinni.
Canada's fiduciary responsibility stems not only from the treaty relationship, but also from the 1763 Royal
Proclamation whereby Canada assumed the responsibility of ``Indians and lands reserved for Indians.''
The specific claims policy and the process have many flaws. It is difficult to determine the best place to begin.
Our understanding of that policy is that it was designed to assist Canada in resolving its outstanding legal
obligations to First Nations by operating under the fundamental principles of fairness, including fairness to First
Nations. At times, it appears that Canada is too preoccupied with exercising fairness to the people of Canada
generally, to surrounding communities. In our view this conflicts with the fiduciary responsibility that Canada has with
First Nations. We perceive this to be one of the major reasons why so few claims have been settled to date and why so
many are still pending.
The next part of my presentation deals with the Blood Tribe's specific concerns arising from their experience with
the specific claims process, which are of a more technical nature at the research level and at the stages prior to the
claims going to the Justice Canada. Ms. First Rider will deal with the next part, which will be a commentary on the
Specific Claims Resolution Act, and Mr. Healy will provide the conclusion of our presentation.
The tribe has been dealing with specific claims since 1974 when they filed the big claim with the then Indian Claims
Commission. This claim is currently still in the system. It is currently before the Indian Claims Commission for an
inquiry, and we are hoping to hear something on that in February of 2007. We have settled parts one and two of an
illegal surrender claim in 1996 and in 2003, and we currently have another four claims going through the specific claims
Some of the concerns we have with the process include, the inherent conflict of interest that lies in the specific claims
process: The body to which the Blood Tribe takes its claims is a department of the body against which it has a claim;
this also affects Canada's fiduciary and other legal responsibilities to the Blood Tribe.
Another concern is the overall effectiveness of the specific claims process in dealing with specific claims in a timely
and fair manner relating directly to Indian and Northern Affairs Canada's management of the process.
Resourcing of the research stage is a problem. First Nations are never in a position of being equal partners leading
up to the negotiation table or at the negotiation table. First Nations are disadvantaged in researching claims, filing
claims and negotiating claims. This is because First Nations do not have, nor will they ever have, the same resources as
the Specific Claims Branch to do research. First Nations do not have the financial resources to hire the personnel to
conduct their research to the extent that the Specific Claims Branch does. The Specific Claims Branch has the whole of
Justice Canada to assess their claims and develop their legal arguments. There is no evidence of being on a level playing
field. For example, the Blood Tribe received about 15 per cent of their total cost of land claim research from the
research funding division of the Specific Claims Branch. The remainder, they paid out of their own resources. If the
tribe had not been in the position to assist with these costs, we would never have been able to bring forward all the
claims we have for resolution either through the specific claims process, the Indian Claims Commission or the courts.
We are concerned about the lack of appreciation and knowledge of the Specific Claims Branch and their researchers
for the unique qualities and history of the Blood Tribe, and I imagine that applies to other First Nations, too.
The draft terms of reference for specific claims historical research, also referred to as the confirmation report, and
the actual draft confirmation report or historical research report often misidentify, over-generalize, unilaterally expand
upon and/or misunderstand the factual issues presented by the Blood Tribe in a particular claim.
Draft terms of reference for specific claims historical or confirmation research often do not follow the outline of
factual evidence presented in the Blood Tribe's written submissions. The result is that much time is wasted on
determining terms of reference that are mutually agreeable to both parties.
We are concerned about the inordinate length of time it takes Indian and Northern Affairs Canada, Specific Claims
Branch and Justice Canada at all stages of the process, including drafting proper and accurate terms of reference for
the historical research report; reviewing written claims submissions when they are submitted by the Blood Tribe;
replying to the Blood Tribe's concerns on the historical research report; revising any historical research report to
accurately reflect factual information; finalizing a historical research report that is acceptable to both parties;
determining whether a claim is valid; and finally, negotiating a settlement on a claim.
Perhaps one of our greatest trials with the process has been at the confirmation report stage. We understand that the
confirmation report is to ensure that all the facts have been set out based on supporting documentation, which
comprises the grievance or the claim. Justice Canada is presented with this report, which they then use as a summary to
work from in determining whether or not the claim is to be validated or rejected. Thus, the confirmation report is a
very important and valuable product, and extreme care needs to be taken so that it is done right and is an objective
recounting of all the pertinent facts and events. We have found that, in our experience, this is not the case. We have one
report that we rejected three times and had actually finalized arrangements with the Indian Claims Commission to
mediate before the Specific Claims Branch was convinced that it needed to be reviewed and rewritten; because their
confirmation report was essentially a legal review and a rejection of our claim at the confirmation stage. I believe it
took three different writers and researchers contracted by Specific Claims Branch to work on this report before a
document was produced that we could live with, so to speak. This is just one example; we continue to have problems
with how our other claims are being dealt with at various stages.
The researchers that Specific Claims Branch retains to conduct historical and confirmation research very often
engage in legal analysis, of the sort I described, and arrive at legal conclusions as to the validity of the claim when their
mandate is simply to provide a report on the factual evidence relevant to a particular claim. Their historical researchers
are not qualified to make legal conclusions.
Specific Claims Branch researchers are often biased in favour of the Crown and against the Blood Tribe, when their
role is simply to provide an unbiased, factual, historical research report.
The language and terminology used by Specific Claims Branch researchers in their historical research reports is
often biased against the Blood Tribe.
The apparent absence of quality control exercised by Specific Claims Branch in reviewing the research report
provided by their researchers is a concern; it appears that the Specific Claims Branch simply forwards their research
reports to the tribe without reviewing them or, if they are reviewed, it does not appear that the Specific Claims Branch
is concerned with the quality or accuracy of the reports being provided to the Blood Tribe.
The quality of work that Specific Claims Branch researchers provide in their confirming historical research report is
often poor; such as poor citation of references, no citation of references, relying on and citing documents that are not
relevant to the claim, misinterpreting and generalizing information found in historical documents, arriving at
conclusions that are not supported by the facts, and arriving at legal conclusions based on factual evidence.
Specific Claims Branch researchers do not generally follow agreed-upon terms of reference in the confirming
research. The practice of utilizing contract researchers creates a situation where there is no corporate memory; new
people essentially are being paid to learn before they can become productive, and we pay for the errors made due to the
Generally, and overall, the inordinate length of time it takes for Indian and Northern Affairs Canada to resolve a
specific claim, being nine to 10 years, is unacceptable. We need to shorten that time frame.
If a claim is rejected, the only option is to go to court. There is presently no dispute resolution mechanism in place.
The internal process developed by the Specific Claims Branch does not offer a way of dealing with a dispute.
We would like to say a word about compensation. Compensation, in our opinion, should not be portioned out over
time. It does not serve the First Nation well. First Nations see these compensations as a means of righting a wrong that
they suffered as a result of fraudulent and mismanagement of their assets at the hands of government and restoring the
economic base they were denied. It does not make sense that the repayment, the settlement, should be rationed out to
them. They should have the full benefit of the compensation up front, so that they can plan comprehensively in terms
of community development and investments.
In light of the foregoing, the Blood Tribe does not view the current specific claims process as adequate to the task of
addressing Canada's lawful obligations to the Blood Tribe.
In respect of any potential benefits to the Blood Tribe and Canada of resolving grievances encompassed by specific
claims, it is difficult to state any such benefits given the Blood Tribe's concern with the current process. Certainly, it
would be of great benefit to both parties to avoid court and costly litigation and to have access to a truly fair and
unbiased process, which is currently not available.
Dorothy First Rider, Senior Researcher, Blood Tribe/Kainai: I would like to share with you our thoughts on the
Specific Claims Resolution Act. The Blood Tribe does not view the Specific Claims Resolution Act as a positive
solution to the timely and fair resolution of specific claims. In 2003, the Blood Tribe made a written submission to the
Senate committee, which set out their concerns. Some of these are as follows: The treaty and fiduciary relationship
between First Nations and Canada must inform the process created to deal with specific claims. This means any
process developed must be designed by both First Nations and Canada. It cannot be a legislative process that simply
continues to allow the existing conflict of interest in the current specific claims process and continues to favour Canada
at the expense of First Nations.
The act is not an improvement over the existing specific claims process. In fact, it creates greater inequity as it
legislatively protects Canada's interests to the detriment of First Nations.
The act continues centuries-long paternalism as it proposes to address the outstanding claims of all First Nations
without regard for the differences among First Nations, including population, geographical area, specific relationships
with Canada, treaties or state of economic development. The Blood Tribe has a unique separate relationship with
Canada, which is independent of other relationships Canada has with other First Nations.
Any process used to resolve specific claims must be independent and impartial. These attributes are lacking in that
the CEO, commission and tribunal will be appointed by federal cabinet; and, while First Nations may make
representations concerning such appointments, there is no obligation on the minister to respond to those
representations or revise the appointing process. This legislatively secures to Canada an unfair advantage.
Vesting the sole authority in the minister also violates the principles of natural justice related to the rule against bias,
which applies to quasi-judicial bodies such as the commission and tribunal.
The lack of independence and impartiality is further compounded by the fact that all commissioners and
adjudicators are eligible for reappointment when their terms expire. This gives the perception that they will seek to
favour their appointers — Canada — in exercising their powers and duties in order to secure additional appointment
The lack of involvement of First Nations in the appointment process continues the inequity in the current process
and continues to protect Canada's current status as both defendant and judge in relation to the resolution of specific
claims. This too undermines the commission's and tribunal's independence and impartiality.
The delay in the current process is not only continued under the act, it is legislated. There is no timeline under which
the minister must make a decision as to whether he will negotiate a claim. He is only required to report to the
commission every six months on the status of his review. The effect is that the entire process is suspended while the
minister continues the claims submission.
The $10 million limit on claims that go to the tribunal gives the minister an incentive not to negotiate larger claims,
which make up the majority of all claims. This means First Nations will have to litigate larger claims or proceed to the
tribunal on the settlement. This is not a reasonable choice for First Nations.
I would also like to address our concerns with the additions to the reserve process. While we understand that this
review's terms of reference do not include anything that goes beyond the settlement stage, such as additions to reserve
policy, there are serious problems that need to be addressed through some kind of mechanism, somewhere within the
The ability of a First Nation to purchase land to replace land that was illegally taken by Canada, or in the case of
unfulfilled treaty promises, sounds good at the onset. The reality is that there are numerous difficulties. Problems with
acceptance of First Nations as business or residential neighbours necessitates a subsequent requirement for a costly
communication strategy and other associated problems and costs with respect to third-party interests. This then creates
other problems for First Nations, such as finding suitable land within the allotted time frame. There is no guarantee
that First Nations will receive an extension of time to purchase land and turn it to reserve. In general, addition to
reserve is a cumbersome process that does not include Canada at certain crucial stages of the additions to reserve
process; for example, provincial involvement, third party involvement. Canada needs to remember that it still has
fiduciary obligations that it chooses not to act upon on behalf of First Nations. There are some real problems in this
area and we just want to alert the senators to this and state that it needs to be looked at by someone, somewhere in the
Les Healy, Councillor, Blood Tribe/Kainai: The Blood Tribe views Treaty No. 7 as the foundation of their
relationship with Canada, and this gives rise to the fiduciary relationship between the parties and Canada's fiduciary
obligations to the Blood Tribe. The treaty and fiduciary relationship are protected in section 35 of the Constitution Act
of 1982, which requires that Canada consult with the Blood Tribe in relation to any actions it takes that will impact on
the Blood Tribe's rights and claims, as well as the relationship the Blood Tribe has with Canada.
The current specific claims process is inadequate to deal with the timely and fair resolution of specific claims. The
act suffers the same inadequacy and inequity. There must be a process that is truly independent, impartial, fair and
timely. The only way this can be accomplished is by First Nations and Canada working toward the creation of such a
process. Canada's unilateral processes and legislation, which serve to protect Canada's interests over First Nations'
and which have been unilaterally imposed on First Nations, clearly have not worked to date and will not work.
There can be no solution until Canada owns up to its legal obligations and sets out a mechanism for the resolution
of claims that is truly independent, fair and adequately resourced at all levels. We are very much in agreement with
those First Nation representatives, who have pointed out that the specific claims settlements need to be viewed in their
proper context as part of the national debt and that action needs to cast them as such by the appropriate government
Thank you for taking the time to listen to our views of the specific claims policy and process.
Senator Peterson: Somewhere in here you mention that your claim is unique and no one else has this type of claim.
What does that refer to?
Ms. First Rider: We have one huge claim that was put before the courts, I believe, in the early 1970s, then filed with
the Specific Claims Branch in the 1980s, re-filed again in the 1990s and is now before the Indian Claims Commission
for review. At the time of initiating the claim, we realized that it included not only a specific claim, but also a
We had problems identifying exactly where to file that claim. It actually had flavours of all three, even a treaty land
entitlement claim. It was difficult, because of the restrictions, policy and criteria set out by Specific Claims Branch, to
determine where it was going to fit. We wanted to know, at that particular time, if there was an avenue where claims
such as this one could be filed with Specific Claims Branch without having to go through those restrictions.
The way the policy is right now is very clear; claims are filed separately as a specific claim, a comprehensive claim or
as a treaty land entitlement claim.
Senator Peterson: You have been in litigation for 34 years.
Ms. First Rider: Exactly.
Senator Peterson: Do you have any idea how close you are?
Ms. First Rider: The claim is being reviewed by the Indian Claims Commission, and we hope to receive some kind of
response by February 2007.
Senator Dyck: Thank you for your detailed report. Throughout it, you specifically address many elements of the
claims process, and the elements that you feel are not working well.
On page 3, one of the items that you addressed was at the confirmation report stage and the problems that you see
with that process. Would you have any suggestions how that could be fixed? It seems to be a major stumbling block for
Ms. Crop Eared Wolf: I t would be proper at some point to have the First Nation involved in the selection of these
contract researchers. If we are going to be in this current process for some time, I feel some provision needs to be made
where First Nations can be part of the selection process as to who does these confirmation historical reports.
Senator Dyck: From what you have presented, it sounds, as well, as though many of these researchers probably do
not have very good job descriptions. Rather than doing historical research, it sounds like they are doing legal research,
which they are not meant to be doing. How do you see getting around those sorts of activities?
Ms. Crop Eared Wolf: Technically, the First Nation is supposed to be involved in setting out those initial terms of
reference. Even though we do, when they actually work with them, there still seems to be ample room for
misinterpretation of the terms of reference. Therefore, I believe it is a matter of how the contract researchers are
Senator Dyck: Even though you had input.
Senator Gustafson: You mentioned in your submission that there were lands in Montana. Do you hold lands in
Ms. Crop Eared Wolf: Part of our traditional territory is now encompassed by what is the present state of Montana.
Our traditional territory extended to the Yellowstone River near Billings, Montana; that would be toward the
southeastern part of Montana. We made a treaty with the American government in 1855, but we never had the ability
to realize any benefit from that treaty.
Senator Gustafson: Is there anything settled with the American government?
Ms. Crop Eared Wolf: No. Actually, in 1980, when we were working with the big claim — and this was a joint
working committee with Canada and the Blood Tribe — one of the items set out in the terms of reference was to look
at that treaty with the American government.
The Chairman: Do you enjoy the benefit of the land at all on the American side?
Ms. Crop Eared Wolf: There is no special benefit.
Senator Sibbeston: I was going to ask the witnesses about the big claim that you talk about here. Did that relate to
land? Also, regarding the fact it has taken so long, it is still not resolved, is it?
Ms. Crop Eared Wolf: It is a huge land claim at the southern and the western borders of the present reserve.
Ms. First Rider: When I was talking about and responding to Senator Peterson's question in regard to the big claim
— and to the various flavours of the big claim, in terms of whether it was a comprehensive, specific or treaty land
entitlement claim — if we had been able to file it in a fashion where we were able to do so with all three, the land that
we would be negotiating for compensation from Canada would be equal to the amount of land that we presently have
for the Blood Tribe — another 544 square miles of land. It is a huge area.
My colleague Ms. Crop Eared Wolf stated one of the problems that contributes to the time it takes to validate or
respond to claims in response to Senator Dyck's question. With one of our claims, we had to reject three confirmation
researches that had been done by people that had been contracted by the Specific Claims Branch. That was over a
period of about three years, and that is a lot of unnecessary time. Initially, once a claim has been filed, it should not
take that long for a claim to be responded to in terms of the confirmation research, right up to the time that the
minister responds to us.
When we are considering a claim that is over 32 years old, that is simply ridiculous. We have to find an avenue, and I
believe this is the perfect forum for the senators to make strong recommendations on how we will resolve these claims
in half the time that it presently takes.
The Chairman: Would you like to respond to this, Mr. Healy?
Mr. Healy: Yes. Under the terms of reference, we did not intend to get into any historical information. However, I
cannot help but provide a little bit of background and history on the issue of the big claim.
I first heard of the big claim when I was approximately five years old. My father would very often visit a member of
the tribal council on the Blood Reserve and discuss this issue of the big claim. That was 58 years ago.
Presently, I represent the elders of the Blood Tribe, as well as the chief and council of the Blood Tribe. The amount
of time that it has taken is unusually long. Many of our members — and many of those on the tribal councils that I
have served on, since 1970 — have either passed away or still are waiting for a response to this particular claim.
We have discussed this over and over again. Now we bring in the fact that it has been going on for 34 years. The
frustration that is often mentioned, not only in the presentation by the Assembly of First Nations, the frustration that
is so often prevalent in our communities is still there. They have waited so long that some of them have passed away.
The big claim goes all the way to the Canadian-U.S. border; we have clips of maps that extend the Blood Reserve
right into the border between Canada and the United States.
Some of the senators here tonight asked if we have a reserve in the United States. I could answer, yes and no. We do,
because we were cut off by that border way back when; we were part of the Blackfoot Tribal Council and the reserve
itself until we were split in two. In that sense, we were part of the Blackfoot Nation there. The other part — no, we do
not — is simply because the regulations and the divisions of the two countries were right there where we were.
I read some of the information provided to us regarding the Lame Bull Treaty. It is stipulated in that treaty that the
Blood Tribe would have a certain portion of land allotted to the tribe.
Historically over the years, because we were from Canada and not allowed to go back and forth freely over the
border, we could not respond to that. In those days, we travelled by horse and buggy, so it was difficult for us to go
back and entertain the idea of where our reserve would be. As well, we did not want to embarrass the Blackfoot Nation
because they are still part of us, and we did not want to embarrass the government-of-the-day into identifying where
our reserve should be. That discussion is ongoing. I thought that would be important in terms of the longevity of this
We are hoping to go back to a meeting of our members to explain to them what happened here today, what we
accomplished and how we will, if ever, deal with the big claim. As my colleagues have mentioned, they hope to deal
with that in February 2007.
I would also like to mention that I was not properly prepared to answer some of these questions, because I was
asked on short notice to replace another council member — our chair person — who had scheduling problems.
Senator Sibbeston: You state in your conclusion that there must be a process that is truly independent, impartial, fair
and timely. We heard this from practically everyone who has come before us — First Nations from all over the
country. I do not know whether you heard Grand Chief Phil Fontaine, when he made his presentation on behalf of the
AFN. He thought that there was a possibility to make changes and to amend the Specific Claims Resolution Act that
has been rejected up to now by the First Nations. With some changes, he thought it could be revived and made to work
for all claims.
Were you involved in any of the work of the task force of the 1990s, set up jointly by First Nations and the federal
government to try to find solutions to this whole specific claims issue? If so, do you agree that there is still some hope in
reviving the Specific Claims Resolution Act that was passed in 2003 but not enacted?
Ms. Crop Eared Wolf: The chief of the Blood Tribe at that time was a member of that chief's committee on claims
when they had initially started it. Then, with a change of government at our end, we did not have an active
involvement. We lost track of it, but we did follow it in a general way and have reviewed it. Part of our presentation
included commentary on the some of our concerns with its limitations. I believe it is possible to work with the Specific
Claims Resolution Act to eliminate the flaws. The key is First Nation involvement at all stages, including political,
communications, technical and drafts. We found, from looking at and being involved in other initiatives, it is easy to
lose track of it at the legal drafting stage. Input to the document is lost and what eventually comes back from the
drafters, is not what went to the drafters. That is one of the key problems with the Specific Claims Resolution Act. Ms.
First Rider might have additional comments on that.
Ms. First Rider: It will work if there is First Nation participation. I know from past experience representing the
Indian Resource Council of Canada, it is important that First Nations be involved from the outset. As Ms. Crop Eared
Wolf indicated, we were involved in the 1995 process of the joint task force. We had many concerns at the time, one
being the capping of land claims compensations and settlements. We were looking at it from the point of view of First
Nations that would ultimately receive due compensation for the big claim. If a cap is placed on it, it is unfair. Other
First Nations should not be penalized if a large settlement has been reached for another First Nation. In the same
respect, we should not be penalized because our settlement might be so large that it will affect those other First
Nations, using up the cap for the many years. The compensation dollars set aside should be realistic and fair.
Senator Sibbeston: I have one final question. A couple of days ago, before the committee, Grand Chief Ken
Malloway said that the whole frustration over the time it takes to settle specific claims is the reason, over the last few
years, that we have experienced Oka, Ipperwash and, more recently, Caledonia. He referred to the fact that if these
claims are not settled soon, there might be more. He said that time is running out; patience is wearing thin. In your area
— the Blood Tribe — are there any situations that could reach flashpoints, where there could be occupations and
blockades that could result in unfortunate incidents for our country? We do not like to see this. Native people are very
patient, but, as Mr. Malloway said, patience can run thin and violence can erupt.
What is the situation in your area? Do you foresee anything like this happening?
Ms. First Rider: Before Oka, what had happened on our reserve was unfortunate. We had the 1980 Blood Tribe
blockade to bring awareness to the big claim issue. At that point, the young people of the tribe were tired of waiting for
a resolution to the big claim. They had been born into the history of the big claim, and they had been raised with the
history of the big claim. The young people, at that time, were so frustrated that they took it upon themselves to have
this blockade to bring awareness and, hopefully, to speed up the whole process. That was in 1980, and now we are
entering 2007. More young people are growing up, and the ones that participated in the blockade are close to their
mid-50s and 60s in age. At times, it is unavoidable, but we are not encouraging that kind of action. We hope to resolve
these issues through speedy negotiations. I have to emphasize, speedy negotiations.
When we examine the economics of the reserve, according to the presentation, we begin to see a clear picture of the
immense size of the Blood Reserve. It is the largest reserve, with the largest population, in Canada. Although it is a
huge reserve, we have 10,000 members living on our reserve. Not many people leave; most live on the reserve.
Therefore, families are suffering socio-economic losses, and they are hoping for the possible benefits of the settlement
of the big claim, along with other settlements, to be able to progress in Canadian society to the point where they should
be. They are not enjoying those socio-economic benefits; and, because they reside on a small reserve, they are turning
to each other in hostility, which should never be the case. Who will suffer for this? It will be Canada. Canada is
supposed to operate in good faith. We have operated in good faith, especially on the big claim for the last 36 years. We
have known of that. Even our chief at that time, who entered into Treaty No. 7, started pursuing the big claim right
after the making of Treaty No. 7 in 1877. That is a long period of time.
We urge you to find a solution to this.
Senator Watt: I am trying to get a better understanding of the big claims, the comprehensive claims, and not deal
with the specific claims or the treaty land entitlement claims.
In regard to your comprehensive claims, you said this is in court. Do I understand you correctly that this has been in
court for the last 30 years or more?
Ms. First Rider: No. It was filed with the courts in the 1970s and then withdrawn; and then the Specific Claims
Branch came into existence and it was filed there. It went through the whole specific claims process. We received a
rejection from Specific Claims Branch, so we then filed it with the Indian Claims Commission for review.
Senator Watt: When your people made the initial move on your comprehensive claims, was it based on the fact that
your land was being disrupted by a development and your traditional territory was impacted? You mentioned that
back in 1877, right after the treaty was signed, you immediately were trying to deal with your big claims.
Was your leverage at that time, and is it still today, that you can go after, for example, investors of the development,
such as oil companies? Do you have any leverage at all to force the government and the developers to come to the table
and negotiate with you?
Ms. Crop Eared Wolf: Let me backtrack a little bit. I will explain how the big claim we are referring to here came
about. When we selected the area where we wanted the reserve, they surveyed it. However, when we came to settle on it
or when the chief at the time came to realize that the boundaries of the reserve were not the same as the survey, he
disputed them. That was some years after the treaty, maybe within 10 years of the treaty and at the point at which he
realized what he had understood to be the boundaries of the Blood Reserve, were not what was surveyed. That is how
it began. We have been trying to resolve it.
Senator Watt: Was there outside interference that led you to believe you had to take some action?
Ms. Crop Eared Wolf: Exactly. There were settlers who settled at the south end, and that made it obvious to him. He
determined his boundaries to be at the Canada-U.S. border, but now there was a settlement of people on the south end.
Senator Watt: Is there any oil on your territory?
Ms. Crop Eared Wolf: There is a great deal.
Senator Watt: Is there development taking place within your claims?
Ms. Crop Eared Wolf: There is not so much. The oil development is more along the northern and eastern borders.
Senator Watt: Has that been staked out by the third party?
Ms. First Rider: We have a lot of oil and gas development on reserve, and there is oil and gas development within the
traditional territory. The comprehensive claim would come within the traditional territory. When we made the treaty in
1877, the government had identified to Chief Red Crow that his reserve was just directly east of, what is now known as,
Calgary, Alberta, along the Siksika Reserve. Chief Red Crow never settled on those lands. He moved back to his
traditional territory, but the federal government had never gone through their own criteria to dissolve that particular
area as a reserve. Chief Red Crow had gone back to his traditional territory, and through amendment they were given
the existing reserve within our traditional territory.
We have that one aspect to deal with, which the federal government is not willing to consider, and then we have our
present reserve, which is supposed to have natural borders by way of all the rivers along that area. There were two
surveys done, one in 1882 and one in 1883, but the federal government came back and said, ``We do not recognize the
first survey of 1882. We will go with the survey of 1883, because it is smaller.'' The federal government was bound to
gain from that.
Then they disputed the population. We did our population through census and through pay list analysis. Then the
federal government, before that claim could be ratified — I believe in the 1980s — said, ``We will no longer use the
Thus, we have been going through many stumbling blocks, one after another.
Senator Gustafson: I believe my question has been asked. Did the Blood Tribe get the benefit of the mineral rights
from the land?
Ms. First Rider: They did from the existing reserve, yes.
Senator Dyck: I will follow up on the problems that you outlined with respect to the researchers and the research
That is a critical question for me, probably because in my former life, I was a biomedical researcher. If a researcher
is trained properly, the whole purpose of research is to gather as much information as possible, get all the facts and
examine them objectively, without any bias. From your point of view, it does not sound like that is happening. You
may not know the answer to this question. When Indian and Northern Affairs Canada hires researchers, do they have
a training process for them, so that the researchers know what their job is, and do they have, within that process,
training that recognizes indigenous methods of research? We are dealing with two processes. The indigenous people
have their own methods of research and gaining knowledge, and the Western or European model of research does not
necessarily look at those processes and see them as valid ways of knowing.
Is there any way of ensuring that the indigenous historical research is granted equal validity during the process?
Ms. Crop Eared Wolf: Currently, I do not know what their process is in terms of training and orienting people they
bring in as contract researchers. My guess would be that they do not provide anything.
As far as indigenous methodologies of research are concerned, I do not believe those are considered at all. One
method that is not, is the related issue of oral evidence, oral testimony. When we do our research, we collect it from the
elders and make it part of our submission. As to what weight Justice Canada gives it, we do not know. We make it part
of our research methodology. We would strongly recommend that they at least consider it the same way the courts
have considered it.
The Chairman: Thank you, senators, and thank you, witnesses. We appreciate the fact that you came. You
obviously know your file. It is more complex with comprehensive land claims, specific land claims and treaty land
entitlement claims. It is scary that I am beginning to understand it. Hopefully, we can come up with the strongest
recommendations possible. You have reinforced what we heard before, but there is uniqueness to your situation. I am
glad you came.
Is there any other business, senators?
Senator Watt: I have one clarification. I asked my colleague to ask that last question. You answered it by saying that
the reserve does receive benefits, but when you are dealing with a comprehensive claim you are also talking about
outside your reserve. This is where your comprehensive claims come from. I want to be clear. You feel that you are
entitled to benefit more than you are benefiting now within your reserve, and you also have a claim outside of your
Ms. First Rider: That was not the driving force of pursuing the land claim initially. The socio-economic benefits
were not the driving force for filing the big claim originally. The filing of the big claim was to right a wrong against the
Blood Tribe in terms of our understanding of the boundaries of the Blood Reserve.
The Chairman: How many acres is the current reserve, approximately?
Ms. First Rider: It is 547 square miles. I am not a mathematician; I do not know how many acres.
The Chairman: It is a lot. One square mile is 640 acres; I know that.