Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 8 - Evidence - Meeting of October 17, 2006
OTTAWA, Tuesday, October 17, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 9:32 a.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.
[English]
The Chairman: I call the meeting to order. Good morning and welcome. I am Senator St. Germain, from British Columbia, Chair of the Standing Senate Committee on Aboriginal Peoples. Today, the committee will continue its study on the Government of Canada's specific claims policy with a view to making recommendations to contribute to the timely and satisfactory resolution of First Nations' grievances in that matter.
I will introduce the members of the committee: Senator Nick Sibbeston, Deputy Chair of the Committee, from the Northwest Territories; Senator Lillian Dyck, from Saskatchewan; Senator Robert Peterson, from Saskatchewan; and Senator Aurélien Gill, from Quebec.
We will hear from two First Nation witnesses, one from New Brunswick and one from British Columbia. It is our hope that they will help us to understand better the challenges of the specific claims processes and will make recommendations to fix the problems. Our first witness is Mr. Wayne Nicholas, a member of the Tobique First Nation in western New Brunswick. After working in the Land Registry of the Department of Indian Affairs and Northern Development during the 1970s, he served as a land claims coordinator for the Tobique First Nation.
Mr. Nicholas, please proceed.
Wayne Nicholas, Member of Tobique First Nation, as an individual: I will open the morning with a prayer.
[The witness spoke in his native language.]
Oh, great fathers of the heavens, be with us here today to help us find solutions for tomorrow.
Good morning, Mr. Chairman, senators, and ladies and gentlemen. I will read from my notes. My presentation comes from my experience as a former land claims coordinator for the Tobique First Nation in New Brunswick. Currently, I sit on the joint research project committee made up of representatives from the specific claims branch, Indian and Northern Affairs Canada, and the Tobique First Nation. My participation in the land claims process over the years has provided many great experiences with fine people across Canada at land conferences when comparing ideas with other claimants. To give an example of the complexity and time-consuming nature of land claims, I will begin with our history.
Our historical grievance is based on the lack of an Order-in-Council accepting an alleged surrender of 12,000 acres of land of the Tobique First Nation in 1892, which was caused by a breach of an obligation arising out of the Indian Act or other statutes pertaining to Indians and the regulations thereunder. The claim was submitted in 1972 to the specific claims branch of Indian and Northern Affairs Canada and 10 years later, in 1982, it was validated for negotiations. Six years later, in 1988, after $800,000 in expenditures, our claim was terminated without prejudice to the validity of our grievance. The termination of the process was based on what was called a "technical breach,'' meaning the Order-in-Council document was missing, although the rest of the surrender document was intact. On July 3, 2002, our land claim was reopened based on several court decisions. Now, we are researching and waiting for a new validation letter to begin negotiations. Thus, after 34 years, we have no idea when this claim will be resolved or settled.
My involvement with the Tobique land claims started in 1984. We noticed the conflict of interest of the Crown whereby Canada is the judge, the jury and the prosecutor in the process of resolving specific land claims. Canada, as the prosecutor, reviews the elements of the land grievance and rejects or validates the First Nations' land claims submission. Canada, as the jury, evaluates the aspects of the land grievance and recommends a resolution to the land claim. Canada, as the judge, hands down a decision to reject or award a settlement.
This process is neither fair nor equitable and should be changed. I recommend that the Departments of Justice and Indian and Northern Affairs continue to be the prosecutor by evaluating the merits of land claims submitted. An independent body, such as the Indian Claims Commission, or a private reputable law firm, is commissioned to fulfill the role of the jury by scrutinizing all documentation on the extent of the damages and by making recommendation to Canada for a fair and equitable settlement. Canada, as the judge, will receive the recommendations for assessment and will rule to accept or reject the findings of the appointed independent jury.
To illustrate the complexities of some claims, the following are some of the other historical grievances of the Tobique First Nation. The first is a breach of an obligation arising out of the government's administration of Indian funds or other assets. The second is an illegal disposition of Indian land. The third is the failure to provide compensation for reserve lands taken or damaged by the federal government or any of its agencies under authority. The fourth is fraud in connection with the acquisition or disposition of Indian reserve lands by employees or agents of the federal government, in cases where fraud can be clearly demonstrated.
I wish to turn now to the processing of claims. Land claims are complex and each has its own historical uniqueness that may require special approaches to advance the claim. INAC, the claimants and the Department of Justice are solely responsible for the speed and progress of their respective claims.
My experience tells me that it is the Department of Justice who is the major culprit in delaying the land claims process. They take too long in responding; they are isolated from the process, and they are never sitting at the table.
The other factors that impede the claims process is the lack of good relationships, lack of due diligence, and multiple taskings of the INAC or the claimants. The solution in speeding up the administrative process of land claims rests with the managers of the specific claims branch. Thee manger could increase their support staff, reorganize their internal processes, and assign their employees into provincial, regional or territorial units. Above all, something has to be done with the Department of Justice, by whatever means, for them to respond quicker and participate at the table with INAC and the claimants.
One thing that has been a great improvement in the process is the joint research project where the claimant and INAC mutually agree to hire an independent historian to thoroughly research the claim without being biased toward either of the parties or clients.
This arrangement provides a professional and detailed historical background for both the claimant and INAC that reveals the historical events prior to, during and after the alienation of Indian lands and assets in question.
The other dilemma that affects performance of the specific claims branch is that the court rulings, favouring Canada or the claimants, potentially set off changes in policy, interrupting the normal flow of claims.
In conclusion, I trust that this presentation will serve in some way to improve the claims process that has frustrated all parties involved. In order for everyone to rise above the enormous delays, we require commitment, dedication, experience, knowledge and cooperation from all parties in the claims process.
The Chairman: Thank you, Mr. Nicholas. We appreciate your having taken the time to bring your expertise to the committee. I have senators who wish to ask questions of you, sir. Are you prepared to answer?
Mr. Nicholas: Yes, I am.
Senator Peterson: Thank you, sir, for your presentation.
You say here that there is no process right now that would see these things being resolved. You outline a process. Is this your recommendation, that the Department of Justice be the prosecutor, that the Indian Land Commission could be a scrutinizer, and that finally Canada as the judge would receive recommendations for an assessment? Who would Canada be? Is that the government or another department?
Mr. Nicholas: Canada works through Indian and Northern Affairs Canada. It is actually the prosecutor, the judge and the jury. They receive the claim, analyze it and decide it.
When I say Canada, I mean INAC.
Senator Peterson: I thought you were trying to separate them so that there would not be that conflict.
Mr. Nicholas: I am trying to separate them. I should like to have Indian Affairs and the Department of Justice be the prosecutor, and perhaps an independent body be the jury, assessing these documents and recommending a settlement to Indian Affairs, and the findings of the jury could be dealt with by Indian Affairs, which is Canada.
Senator Peterson: Would you say the most important thing we can do to help you would be to define that process and get it approved?
Mr. Nicholas: Yes. Currently, if there is no resolution from Indian Affairs and the Department of Justice, it goes to the Indian Claims Commission. They serve as another body to review the claim. They decide on it, but maybe the Indian Claims Commission could still play that role if there is a dispute from the claimants and the ruling from Indian Affairs.
Senator Trenholme Counsell: I trust you know I am from New Brunswick, so it is very special to have you here this morning. I wish I could say "welcome'' in your language. How would you say it?
Mr. Nicholas: We do not really say "welcome'' in our language.
Senator Trenholme Counsell: We know what we mean. I was interested in your use of the term "Canada,'' because Canada is made up of people, agencies, ministries and so on. When you say "Canada,'' do you mean the Department of Indian Affairs and Northern Development?
Mr. Nicholas: Right.
Senator Trenholme Counsell: I am replacing someone else on the committee and as such am not as familiar as other members are. Are you the first First Nation in New Brunswick to seek a land claims settlement?
Mr. Nicholas: No. There are 15 communities in New Brunswick. I think there are six Maliseet First Nations and seven Mi'kmaq First Nations. They have their own respective claims.
Senator Trenholme Counsell: Have any been settled?
Mr. Nicholas: Yes, a few claims have been settled, such as the Oromocto, the Maliseets. Several others have been settled, but there are ongoing grievances still being looked at.
Senator Trenholme Counsell: Have you been able to gain help from, let us say Oromocto, in terms of your own dilemma, your own search for a settlement?
Mr. Nicholas: No. I have attended AFN conferences. I have gone to Garden River and Rankin Reserve to look at some of their processes and compare notes. However, in New Brunswick, every claim is unique. I look towards First Nations that have similar cases to ours, such as Mississauga, Ontario, which has a similar dilemma. We compare notes with them. That was way back in 1985.
Senator Trenholme Counsell: Could you tell me about the 12,000 acres of land that were surrendered in 1892? Is this the land on which the Tobique First Nation is now located? Is this largely forested land? If so, what use is being made of the land, or who has control of it now?
Mr. Nicholas: It is all under individual ownership of non-Indians.
Senator Trenholme Counsell: Is it individual farms or properties or businesses?
Mr. Nicholas: Yes.
Senator Trenholme Counsell: It is not Crown land.
Mr. Nicholas: No. Only three or four lots out of the 166 remain under the Tobique First Nation, and there are several unsold lots to this day.
Senator Trenholme Counsell: You mentioned 160 lots. Are these lots on which non-Aboriginals have built properties or businesses?
Mr. Nicholas: Some are residential, but most is woodland.
Senator Trenholme Counsell: Owned by whom?
Mr. Nicholas: By individual, non-Indian people.
Senator Trenholme Counsell: By companies?
Mr. Nicholas: No, not companies. They are individually owned.
Senator Trenholme Counsell: It is a vast stretch of land, part of which is populated and part of which is forest land.
Mr. Nicholas: That is right.
Senator Trenholme Counsell: Does the fact that a significant proportion of it is now in the hands of individual property owners with residences enter into this?
Mr. Nicholas: Yes. When they reopened the claim in 2002, they indicated that, in order to continue negotiations, they did not want to displace any people. That was not our intention. We do not intend on displacing anyone, but we have to be compensated. We have lost money and the productive use of it. Our community has lost so much.
Senator Trenholme Counsell: When was this first settled? When did other people start building properties and establishing their dwellings on that land?
Mr. Nicholas: Originally, Tobique acquired that land through the Province of New Brunswick back in 1801. As early as 1803 or 1805, squatters started coming in and squatting on the lands in question. The Government of New Brunswick did not do anything. That was prior to Confederation. The Legislative Assembly of New Brunswick brought in what they called the management and disposal of Indian lands. It is the legislation of 1844 and 1854 for the sale and disposal of Indian lands prior to Confederation.
Senator Trenholme Counsell: That is very helpful. Thank you, Mr. Nicholas.
Senator Lovelace Nicholas: Mr. Nicholas, in the top paragraph on page 3 of your presentation, you mentioned fraud in connection with disposition of Indian reserve land. Could you explain that further?
Mr. Nicholas: In researching our claim, we were able to solidly prove that the Indian agent at the time manufactured the document, and Ottawa was unable to issue an Order-in-Council to accept that surrender. There are many inconsistencies with that surrender, and that is why Ottawa never issued an Order-in-Council. At one time, there was a claim that it was burned in the fire in Parliament in 1916. They searched for many years for that missing Order-in- Council. With extensive research and evaluation of that document, we were able to prove fraud by the Indian agent to cover up the tracks of awarding land to non-Indians. That is basically the situation regarding fraud on the 12,000 acres.
Senator Hubley: Good morning, Mr. Nicholas. I will ask you to expand and further explain the note on page 4 of your presentation that the other dilemma that affects the performance of the specific claims branch is the court rulings favouring Canada or the claimants potentially sets off changes in policy or interrupting the normal flow of claims. Could you explain that for me, sir?
Mr. Nicholas: I am not familiar enough with all these cases to go right into the court cases, but the Blueberry case talked about the surrenders. The claimants complained about the process of these surrenders that were improperly done. In that case, the judge was in favour of the claimants and said that Canada should sit down and negotiate with them, there being so many inconsistencies with their obligation and responsibility to the lands and assets of that First Nation. Would that answer your question?
The Chairman: For clarification, is that the Blueberry band in British Columbia?
Mr. Nicholas: That is right.
Senator Hubley: I have a question on another topic, the Atlantic Policy Congress of First Nation Chiefs, which was formed in 1992. The congress undertook an Aboriginal and treaty rights education initiative to educate both the First Nations and the public on specific claims. Are you familiar with it and, if so, would you give us your opinion on how effective and how necessary those educational programs are?
Mr. Nicholas: I think they are a godsend. The work done by APC teaches the young, the middle-aged and the elderly about the treaty process. Their main priority was treaty education. I am not sure, but I think little was done on the specific claims process. Most of it was about treaty education.
Senator Hubley: In your opinion, is the general public educated enough with respect to the issues that the First Nations are facing vis-à-vis specific claims?
Mr. Nicholas: I think so. The Department of Indian Affairs has a website that illustrates the purpose of specific claims process. However, there should be more continuing education — because as these claims come to a head, the more that people know about the specific claims process and the treaties, the public would appreciate a resolution to all of them.
Senator Dyck: Welcome, Mr. Nicholas. Thank you for your insights into this particular issue. The question I have for you is with regard to the processing of claims. You mentioned the Department of Justice being a major problem in the settlement process. You mentioned that the department is isolated from the process and that it never sits at the table. Could you expand on that and explain how you think having the department at the table might speed up the settlement process? As well, can you tell us who else should be at the table?
Mr. Nicholas: Our legal brief was submitted three or four year ago and the Department of Justice has not yet responded to it. I do not know why it is taking so long for them to evaluate our legal brief. In order to speed up the process, we requested that the department be at the table. In that way, our legal counsel and the department could iron out some of these things that really slow them down. There is no connection between our legal counsel and the Department of Justice, which should take place in order to try to move the claim along. A connection is essential, in order to speed up the land claims processes.
I am suspicious that Canada is trying to find a way out or a way to bear minimum responsibility to deal with the claim. The suspicion held by many First Nations is that the Department of Justice does not want to settle or wants to minimize its obligation.
Senator Dyck: I will ask more questions along this line because of my ignorance of the process. You talked about the Department of Justice sitting at the table with your lawyers. Do you mean that they should be present during the initial phase when your lawyers are researching and making their assessments of your claim? Having departmental officials there at that time would educate them and allow them, from their perspective, to make initial judgments.
Mr. Nicholas: That is right. After our legal counsel is done with his brief and the Department of Justice reviews it, then we would have another meeting with the Department of Justice at the table. That would truly be beneficial to both Canada and the claimants.
Senator Sibbeston: Mr. Nicholas, how significant are the 12,000 acres of land to your people? Could you describe the area of land that your people currently occupy on the reserve?
Mr. Nicholas: Our current reserve is 6,000 acres. The land in question was a great loss to us. We do not have any productive use. There are many economic benefits that we could have had, such as logging, on that land. As well, we have lost areas of medicinal plants and sacred grounds. That is the value of what has been lost. We have been deprived of the use of that the land. We cannot hunt or fish on it. There are many things that we cannot do on that land. Back in the 1950s, the landowners used to allow us to get ash, to fish and to hunt on their properties. It is becoming more and more difficult because people have built fences because they do not want us on their land. Those are some of the things that have triggered the grievances.
Senator Sibbeston: You talk about the internal process, whereby you take your claim to the Department of Indian Affairs, who assess the claim with the assistance of the Department of Justice. It is very much an internal process. In a sense, you are up against the Government of Canada. It is up to those departments to either accept your claim or reject it. I can understand why it is thought that the process is stacked in favour of the federal government. What chance can you have with your claim?
The one hope that you have in the process is the Indian Claims Commission. Have you had a chance to take your claim through the Indian Claims Commission process?
Mr. Nicholas: That is what I am talking about. We are in that specific claims process, which is made up of the Department of Indian Affairs and the Department of Justice. Those two bodies deal with all claims across Canada. They have people assigned to claims in New Brunswick, in Alberta and in British Columbia. Those officials have individual desks where they deal with the claims from each region. One of the things I failed to mention was the frequent change in the staff of analysts and others who work with each First Nation's claim.
Senator Sibbeston: I am aware that, in the claims process, the Indian Claims Commission is supposed to be an independent body, which is appointed by the Minister of Indian Affairs and Northern Development. The idea is that it is somewhat independent of the Department of Justice. Have you dealt with the ICC? Has the ICC had a hand in your claim process?
Mr. Nicholas: No, we have not gone to the Indian Claims Commission because of the existing process through the specific claims branch of DIAND. In the event that everything falls apart, we will take our claims to the Indian Claims Commission.
The Chairman: Mr. Nicholas, was your claim rejected?
Mr. Nicholas: Yes, it was rejected in 1988 when the then minister of Indian and Northern Affairs Canada met with us and said that we had to terminate the process because, although the Indians received the money and the people got the land, the Order-in-Council was missing. They called it "a technical breach'' because section 39(1)(c) of the Indian Act says that all surrenders are void if there is no Order-in-Council.
The Chairman: This is for clarification. It is my understanding that when your claim was rejected you could have taken it to the Indian Claims Commission.
Mr. Nicholas: We could have done that. The terms of the termination were such that our claim is still valid but the government did not want talk anymore. That is why we stopped and never went to the ICC.
The Chairman: That explains it, in part.
Senator Gill: Mr. Nicholas, I will ask you questions in French, if you do not mind.
Mr. Nicholas: I do not mind.
[Translation]
Senator Gill: Mr. Nicholas, I would like to congratulate you on your accurate, lucid and realistic description of the process undertaken by First Nations when pursuing a land claim.
You are a member of a First Nation and you have considerable experience with land claims. How do you feel when after all the years, you still must travel to Ottawa, to the Department of Indian Affairs or to the Department of Justice, to claim something which, in your mind, already belongs to you? For example, to fish in the forest, you must file a land claim and so forth. How do you feel about that?
[English]
Mr. Nicholas: I wish I could answer in your language. I feel very strongly about it because, as a child, I learned early in life when the elders talked about that land that one day it should come back to us. That stuck in my mind. I am proud and carry the words of my elders, and I want to try to do something about it. I am an optimist, and I hope there will be a resolution some day. If there is no resolution, we can always take Canada to court regarding the loss of our lands in 1892.
[Translation]
Senator Gill: Do non-Aboriginals support your land claims filed with the government? Do you believe non- Aboriginals are well informed?
[English]
Mr. Nicholas: In 1985, there was a lot of animosity among the local people. The town of Perth-Andover is on the land in question. We conducted some activities on those lands that offended the local people. It affected our children going to school and created a lot of non-support from the local people. However, in other areas we had a lot of support from non-Aboriginal people. We made amends with the local people once they understood that we are not there to displace them and that it is not their fault; it is the fault of the government for failing to fulfil their obligations. We now have a lot of support locally.
Senator Lovelace Nicholas: Mr. Nicholas, you mentioned that there are 6,000 acres of land in your community. As the population is growing rapidly, is that enough land for the people?
Mr. Nicholas: I do not think so. We are always trying to find new subdivisions, given that we have a housing backlog. There is much unemployment. Most of the land is hill country with many high ridges and a lot of forest. There is hardly any room for subdivisions. We have to search for space every time we need to create a new one.
Senator Lovelace Nicholas: If a land claim for 12,000 acres were successful, would there be plenty of land for the people to build on and get resources from?
Mr. Nicholas: We still have enough land to build on; it is just that it is difficult to build subdivisions. If we get that land back, or get a settlement of some type, it would increase our economy and well-being, and it would be a great victory.
The Chairman: Mr. Nicholas, was it proven that you were defrauded of your land? Has it been accepted by the government that fraud was actually perpetrated by the Indian agent at the time?
Mr. Nicholas: The government has not responded to that. The Department of Justice has the documents and we have not yet heard.
Senator Watt: Mr. Nicholas, what you have presented could be used to formulate recommendations.
You said that in 1854 the land was still considered to be Indian land.
Mr. Nicholas: Yes.
Senator Watt: They were using the term "Indian lands,'' and I presume they recognized that Aboriginals were the owners.
Mr. Nicholas: Yes, we were.
Senator Watt: In 1854, did they actually decide, on the basis of a previous surrender, that the government had the right to do whatever it wished, including giving that land to the private sector?
Mr. Nicholas: Yes, that was done through legislation. In 1801, 18,000 acres of the land was awarded to the Indian chief. As squatters moved onto the land after 1801, the situation got out of hand, and in 1844 the Legislative Assembly of New Brunswick dealt with it by creating new legislation for the management and disposal of Indian lands. In 1854, they amended that legislation.
It was our property, and with the stroke of a pen the legislative assembly decided to take that land away from us. We do not agree with that. It violates some of the provisions of the proclamation of 1763, and it violates human rights. We have a right to property and we are human beings. That is why I am so adamant that the Province of New Brunswick had no right to take that land through that legislation of 1844 and 1854.
Senator Watt: During that time, did the New Brunswick government have the authority to make those decisions by passing legislation without consent from the federal Department of Indian Affairs?
Mr. Nicholas: The Government of Canada did not exist in 1844 or 1854. New Brunswick was a colonial government and that is how they treated the Aboriginal people in that region. Indian Affairs acquired the jurisdiction and obligation in 1867. That is when the Government of Canada could have done something about it, because at that time much of the land was still intact. There were perhaps 17 lots in question prior to Confederation.
Senator Watt: I imagine that those lands are gradually reducing in size year by year. Therefore, there is urgency in this, but the Government of Canada does not seem to want to move quickly. Even though they recognize that the rights exist, they do not want to talk to you.
What recourse do you have? Even if you utilize the instrument that has been set up by the federal government to make your case known and to validate your claims, what opportunity will you have to get your message across and get the business done? Maybe you are wasting your time. Maybe you should go straight to the court and have this matter dealt with.
As you said, the action was taken before the institution of the Government of Canada, so it does not fall squarely into the instrument that is now in place.
That is something this committee should take into consideration, Mr. Chairman.
Mr. Nicholas: Before you do that, you should examine the situation much more closely. There are many complex details involved. We are talking. As I said earlier, I am an optimist, and I think there could be a resolution to this. I think the specific claims branch is concentrating on the matter. I am sure that we will have a resolution. However, if we do not, we will go to court.
Senator Watt: You still have to obtain financing to go to court, and I imagine you have to get that through the Department of Indian Affairs.
Mr. Nicholas: No. We can generate our own funds, and we can probably find contributors. We do not have to get the money from Canada.
Senator Sibbeston: Mr. Nicholas, you state in your presentation that the basis of your claim is that there was a breach of an obligation; there was not an Order-in-Council to justify the taking of the land. Have you had a chance thus far to go beyond the technical aspects of your claim?
In the Northwest Territories, where I come from, there was an alleged treaty with the people in 1921. In the 1980s, the people of the North took the validity of the treaty to court, and the court did find that there were some real questions. There was not the meeting of minds and so forth necessary to enter into a contract or a treaty, so the validity of the treaty was brought into question. That was the basis on which the federal government eventually recognized that there was not a treaty made, so they entered into comprehensive land claims, which resulted in land claims settlements in the North.
Do you have any evidence to show that, while the paperwork was done, and perhaps not perfectly, there is some question as to whether there was really surrender of the lands, according to the history of your people?
Mr. Nicholas: It is evident from our documentation that the surrender never existed. Those papers and evidence are before the Department of Justice, which has have been sitting on them for two years. It is blatantly obvious that there was fraud. We have different ways of providing evidence to that effect. We have experts that analyzed the Xs. They were done by one person. Documentation is missing. Did the meeting ever take place to gather the people to let them know that there would be a surrender? Everywhere you look, there are indications of something missing. We are convinced of a fraudulent transaction.
Senator Sibbeston: I suspect that thus far there has been a legalistic and technical review by the Department of Justice officials. They are not the type of people to give too much credence to the evidence that you talk about. They would look at it on a very technical basis. You obviously need to go beyond that and take it to court or at least to the Indian Claims Commission, where there are people who would be much more sensitive and open to dealing with your claim, rather than having it reviewed by Department of Justice officials, who would see it in a very technical and legalistic manner.
It seems to me that you have a claim, but you need to take it to a body that would be more open to hearing some of your evidence.
Mr. Nicholas: I represent the Tobique First Nation and the chief and council. That would be their call. I will take it back to them, but it is up to them to decide. The chief and council to this day are convinced that there will be a settlement soon. They are waiting. Before they consider going to the Indian Claims Commission, they want to wait a little longer. However, I will give them that advice.
Senator Gill: So far, you have spent a lot of money, in 1988, $800,000, now probably more than $1 million or $2 million. Why are you not using the comprehensive claims process? Why are you still using the specific claims?
Mr. Nicholas: It only deals with the Tobique First Nation. The comprehensive claim is a much broader claim. It involves all the Maliseets from the Saint John River, as well as the Mi'kmaq. We have identified territories in New Brunswick that we once had and the Mi'kmaq also have territories that they utilized. The Mi'kmaq are coastal tribes and we are mostly inland. A comprehensive claim would have to consist of all the Maliseet uniting, as well as the Mi'kmaq, to launch a comprehensive claim. A specific claim only deals with individual First Nations that lost land through the neglect of the obligation of Canada.
Senator Gill: Yes, but is it not possible for you to use this process with Maliseet and Mi'kmaq?
Mr. Nicholas: The Atlantic policy congress has that file. They are trying to organize and possibly get it ready for submission. I am not sure where they are in that file.
Senator Hubley: My question, Mr. Nicholas, is on Bill C-6. We have heard from some witnesses who certainly support the independent claims commissioner and independent claims tribunal but who have also said that, although Bill C-6 has flaws and would need recommendations, it might be better to go in that direction rather than starting over after 60 years. Do you have any comment on that?
Mr. Nicholas: It would be good if the Senate committee could influence some changes in the current system rather than developing a brand new set of processes. I know it was almost approved, but there were some flaws in it, as you said. I am not familiar with Bill C-6. In any event, I would recommend that the Senate committee try to do something.
Senator Hubley: If there were one thing you would like to recommend to our committee to bring forward as a recommendation, what would that be?
Mr. Nicholas: Your mandate would be to try to speed up the process, as well as having the Department of Justice participate in the process more rather than hiding away and being isolated.
Senator Watt: The question that I was going to ask has already been asked by another senator, but I would like to expand a little bit on the notion of where you are at and where we go from here. Senator Gill made a point when he spoke about the comprehensive claims. I am a little surprised to hear that the First Nation representative is willing to settle only on the basis of the specific claims but not on the comprehensive claims, when they did not deliver what they were supposed to deliver. The only thing that they have delivered actually is to get you to surrender the land that you own. In other words, the land was stolen from you. Now you have to make the claims. This does not rest well with us.
The Chairman: Thank you, honourable senators, and thank you, Mr. Nicholas, for your enlightening presentation and your responses to the questions posed by senators. We will certainly scrutinize your recommendations carefully when we are compiling our report.
We now have before us a representative from the Union of British Columbia Indian Chiefs. Ms. Debbie Abbott is the executive director of the Nlaka'Paumux Nation Tribal Council based in B.C., composed of eight First Nations from the Fraser Valley.
Ms. Abbott, you have approximately 10 minutes to make your presentation, following which senators will ask questions. I know you came a long way to be here today. You come from one of the nicest places in the world. Please proceed with your presentation.
Debbie Abbott, Executive Director, Nlaka'Paumux Nation Tribal Council, Union of British Columbia Indian Chiefs: Thank you. As already mentioned, I am present on behalf of the Union of British Columbia Indian Chiefs. We work with the organization's research unit, along with a number of the research units in British Columbia. I thank you for inviting us to make this presentation today.
I am here to address the critical specific claims situation in B.C., particularly the large number of B.C. claims in the backlog. B.C. has a distinct history of reserve establishment that makes specific claims in B.C. unique.
Reserves were established in three ways in B.C.: One, by treaties in southern Vancouver Island and the northeast part of the province; two, pursuant to legislation that established a Royal Commission from 1913 to 1916, known as the McKenna-McBride commission; and, three, by unilateral undertakings of Crown agents such as colonial governors and Indian reserve commissioners — and most reserves were created in these ways.
The implications of B.C.'s unique reserve history regarding specific claims have been and continue to be profound. We ask you to give these facts special consideration when recommending strategies to reduce the claims backlog. B.C. accounts for the largest number of claims under review at the specific claims branch. Of the 629 claims with the specific claims branch listed as under review in 2005, nearly half of them — 296 or 46 per cent — originated from B.C.
B.C. has the largest number of new claims researched each year. Claims in the backlog from B.C. total 188, or 60 per cent of the 312 claims awaiting Department of Justice review. Claims with the Department of Justice are currently waiting seven to 10 years or more to be assigned a lawyer to review them. Because of the high number of B.C. claims in the backlog, reduction of the backlog must necessarily focus on reducing claims originating from B.C.
British Columbia First Nations were encouraged when the minister recently announced that the reduction of the specific claims backlog was a priority. He is looking at providing more resources toward the existing system. Through the newly formed B.C. specific claims committee, First Nations directly contacted Minister Prentice to attempt to arrange a meeting to discuss B.C.'s backlogged claims. However, the minister has not acknowledged receipt of the June 12, 2006, letter and seems to have made no effort to address the unique claims backlog in B.C.
A recent Supreme Court of Canada decision is also affecting B.C. claims at the Department of Justice.
In 2002, the Supreme Court of Canada ruled in the Wewaykum case, perhaps known as the Roberts case, that the nineteenth century Indian reserve commissions in British Columbia did not have the authority to actually reserve lands in British Columbia for First Nations and that their decisions were only recommendations. A conveyance of lands from the province to the federal government was required to establish reserves under the Indian Act, and this did not happen until OIC 1036 in 1938. In the last two years, Canada has used this ruling to suspend or terminate negotiations on commonage claims that it had already accepted for negotiation, claims that had already cleared the backlog.
First Nations in B.C. are deeply concerned that Canada may try to use this ruling to reject virtually all specific claims involving reserve lands in B.C., allotted prior to 1938, excluding the Treaty 8 reserves and the old Peace River block. In B.C., there is growing concern that this could be Canada's strategy to reduce the backlog of the B.C. claims.
B.C. First Nations are also concerned that the number of claims that will be considered will be further reduced by the pending Specific Claims Resolution Act. Though this legislation has not yet come into force, it threatens to exclude a large number of B.C. claims from consideration — those related to unilateral undertakings of the Crown. Most reserves in B.C. were established by unilateral undertaking of the Crown by Governor James Douglas from 1848 to 1865, by other colonial officials from 1866 to 1871, and by Indian reserve commissioners from 1875 to 1910. Many of the specific claims in B.C. involve unilateral Crown undertakings to set aside reserve lands. Despite this, the Department of Justice refuses to accept specific claims based on unilateral undertakings.
The minister has rejected amending the Specific Claims Resolution Act or revisiting the joint task force report as advocated with one voice by First Nations across Canada, including those from B.C. Instead, he has indicated a preference for tinkering with the existing independent specific claims committee.
Senators, with 60 per cent of the claims in the backlog, 48 per cent of the claims under review and the largest number of new claims researched each year, it is imperative that consideration of B.C.'s unique claims situation is integral to any strategies developed to reduce the backlog. It is also imperative that significantly more resources be dedicated to reducing the backlog of B.C. claims in the system. Further, a majority of B.C. claims could be rejected based on the Wewaykum decision and many others related to unilateral undertakings are not even being considered for negotiation, leaving B.C. First Nations very little recourse in having their specific claims resolved.
B.C. First Nations are not confident that reducing the B.C. claims in the backlog and resolving their specific claim is a priority, nor are they certain that current reviews of the specific claims situation will be any more successful than past reviews. The underlying issues with the existing specific claims policy still exist — namely, the delay and the federal government's conflict of interest in judging claims against itself, as well as their current approach in taking the narrowest interpretation possible for their outstanding obligations. This narrow approach seems to be creating more business and does not address or complete unfinished business, which in turns adds to the ever-growing backlog.
Minister Prentice has recently voiced his intention to overhaul the process, but he does not refer to his previous call for an independent claims body when he was on the interim Indian Claims Commission.
There is a strong sense in B.C. that, if the current situation persists, there are only two options left — litigation or confrontation — both of which are costly not only in terms of resources and time but also to the successful building and sustaining of relationships between B.C. First Nations and Canada.
We have a few recommendations: B.C. First Nations want their backlogged specific claims reviewed and resolved. We want assurances that future claims will be reviewed in a timely manner and negotiated fairly. To this end, we invite you to send a delegation to B.C. to review the unique specific claims situation there and offer any assistance we can provide. We recommend that significantly more resources be devoted to reducing the backlog of British Columbia's specific claims. We recommend that the allocation of resources devoted to reducing the backlog reflect the number of B.C. claims. We recommend significantly increasing the amount of dedicated in-house expertise, legal counsel, to review B.C.'s specific claims. We recommend that significantly more resources be devoted to the settlement of B.C. specific claims. We recommended that an overhaul of the specific claims policy as recommended by the 1991 joint task force is necessary to receive fair and timely settlement of B.C. specific claims. Specifically, we recommend an independent tribunal be set up to resolve and negotiate claims.
I wish to make a final point for those of you who may not be completely familiar with the First Nations and our situation in British Columbia — that is, that we have over 200 First Nation communities and, with those communities, we have 1,681 reserves. I thank senators for your time and attention, and I am happy to answer any questions you might have.
The Chairman: Thank you, Ms. Abbott.
Senator Peterson: Thank you, Ms. Abbott, for your presentation. You indicated that there are in excess of 200 First Nations in British Columbia, but your group only represents eight?
Ms. Abbott: Yes.
Senator Peterson: When you say the Union of British Columbia Indian Chiefs —
Ms. Abbott: Our communities are members of the Union of British Columbia Indian Chiefs, but the tribal council, the Nlaka'Paumux Nation Tribal Council that I work with, works directly with eight First Nations. Our communities are party to the Union of British Columbia Indian Chiefs.
Senator Peterson: All of the other remaining First Nations are supportive of or in concurrence with your recommendations here. You are not a different group.
Ms. Abbott: That is correct. Other First Nations in British Columbia are in support.
Senator Peterson: British Columbia appears to be different in its specific claims from the rest of the country. Could you explain what it is, and do they require a different process than the rest of Canada?
Ms. Abbott: As I mentioned, in British Columbia, we have more than 200 First Nations. The majority of those First Nations are fairly small. We have 1,681 reserves. As a quick example, in my community of Lytton First Nation, we have 54 reserves. It is different in comparison to some of the First Nations across Canada where they have large populations and large reserves, and perhaps fewer reserves.
Senator Peterson: Do most of the First Nations in British Columbia have treaties?
Ms. Abbott: No. There are only a few existing treaties at this point, and the majority of British Columbia is not in treaty.
Senator Gill: To make sure that I understand, how many First Nations — I am not talking about the number of bands, but the nations — are there in B.C.? How many nations like Nisga'a are there?
Ms. Abbott: There are approximately 27.
Senator Gill: People sometimes are confused by that. They feel that if you have 200 reserves, you have 200 nations. Thank you very much.
Senator Hubley: Welcome, Ms. Abbott. I am wondering if you could give me an idea of the independent tribunal that you recommend be set up. Who will the tribunal be composed of? Who will be represented on the tribunal? How does that tribunal fit in with the present process? Are we looking at just having one body to deal with the claims, or is this a body that will deal with more difficult claims?
Ms. Abbott: I believe it would be composed of one body dealing with all of the claims throughout British Columbia.
Senator Hubley: Would that system work for the rest of the country? Would it be advantageous to other provinces as well?
Ms. Abbott: Yes. I believe each region is very distinct and has unique challenges. I think that would perhaps be something worthwhile to consider for all regions.
Senator Hubley: I made suggestions as to who should be represented on that body. Who do you envision would consist of the representation on that tribunal?
Ms. Abbott: We will look at having independent community members on that tribunal who would not be representing government or First Nations but would take into consideration the circumstances within the region and the issues.
Senator Sibbeston: Ms. Abbott, what is the nature of most of the specific claims in British Columbia? Does it involve just the size of the land or the way in which it was completed?
Ms. Abbott: I believe most of the claims dealt with the way in which they were completed. Most often, the land was taken unilaterally without the consent at the time of the First Nations.
Senator Sibbeston: You stated that you think a decision by the Supreme Court a number of years ago had a negative effect on your specific claim.
In the event that this court decision is followed, does that not then place B.C. in a position where, if these reserves were not validly completed, it opens the whole question of land claims and the establishment of reserves in B.C.? Does that not help you overall in dealing with the federal government, in that they obviously must settle land claims with the First Nations of British Columbia?
Ms. Abbott: Yes. However, we are not in total support of that Supreme Court decision. It only reflects the situation of a couple of communities. It does not really create a great opportunity for the balance of the region to move in a manner that addresses the claims they are faced with and are struggling with.
Senator Sibbeston: I noticed one of your recommendations was for our Senate committee to go to B.C. and meet with First Nations regarding this topic of specific claims. How serious are you about that recommendation? How important would it be for our committee to travel to British Columbia?
Ms. Abbott: I am very serious about that recommendation. I can quickly provide an example conveying the particular situation for a number of our communities in our Nation.
We are in a transport corridor reaching 100 linear miles from Ashcroft along the northern and southern parts of our territory. Within that region, we are challenged with two railways, a highway and a hydro right-of-way. Each of those presents specific claims issues to our communities.
At this time, we are currently working with the two railways. The communities have prioritized the issues, and we are working on 102 claims on behalf of 11 First Nations.
The Chairman: Could you explain more with reference to the question regarding unilateral decisions, Ms. Abbott? Many specific claims in B.C. involve unilateral Crown undertakings to set aside reserve lands. Are you saying that, because they were unilateral decisions, they are being disregarded by the Department of Justice?
Ms. Abbott: That is part of the problem. The other problem is that, at the time of the establishment of those reserves, our people had a system of seasonal rounds. When the establishment of the reserves occurred, a number of our people lived along the river system when it was our fishing season. Therefore, a number of reserves were established along the riverbanks along with a reserve fishery. That did not take into consideration where people lived throughout the balance of the year.
When you look at a number of our reserves today, they are on the hillsides of the river with very little usable land. There is no opportunity for farming. The essence of our survival and sustenance is the fishery.
Senator Dyck: Thank you for your presentation, Ms. Abbott. On page 3 of your written presentation, you talk about the Specific Claims Resolution Act and how, if that legislation comes into force, it seems like it will have very negative effects on many of the claims that have originated from B.C.
Do you have any recommendations as to what should be done? How do you go about dealing with this so that there is not a negative impact on the claims from B.C.? It seems that many of your claims have to do with unilateral undertakings.
Ms. Abbott: If you were to seriously consider visiting B.C., I believe it would present an opportunity for not only my input but also that of many of the First Nations from British Columbia in terms of the concern. I think that would be the best opportunity to answer your question.
Senator Dyck: It seems there is a real conundrum in that the process as presently set up does not take into account the historical undertakings in B.C. and will not validate the claims you have.
Ms. Abbott: That is right.
Senator Gill: You have many specific claims as compared to the other provinces. Is that because you have very few treaties in B.C.?
Ms. Abbott: Yes. That is one of the three points I provided on page 3 of my presentation, our distinct history of reserve establishments. There are treaties only in the southern portion of Vancouver Island and the northeast part of the province.
Senator Gill: Is that as a result of colonization reaching the province of British Columbia late? Foreigners settled there after the other provinces. Is that an explanation of why you have so few treaties?
Ms. Abbott: Back in history, a commissioner, whose name I do not remember, said that he did not see the need for treaties, that because of smallpox and other diseases, there was not a sense that the Aboriginal people would survive.
Senator Gill: It is a miracle.
Ms. Abbott: Yes.
The Chairman: Were these reserve lands set aside unilaterally by the province?
Ms. Abbott: They were unilaterally set aside by the commissioners of the day.
The Chairman: Were the commissioners provincial or federal people?
Ms. Abbott: They were federal.
Senator Trenholme Counsell: Thank you for being here, Ms. Abbott.
These unilateral undertakings were made before B.C. was a province. Are there precedents in any of the other western provinces that joined Confederation later for the resolution of the type of situation you are facing? Do you have anything with which to compare your situation in the west of Canada? These were obviously undertakings of the Crown only. In other words, the Crown, through a commissioner or whomever, gave the land to the First Nations, and that is part of the problem.
Is there an example in another province in Western Canada of this type of situation being resolved successfully?
Ms. Abbott: I cannot think of one at the moment. It might help you to understand our situation to know that when CN Rail, a Crown corporation at the time, was looking to double-track through the Thompson-Fraser corridor in the early 1980s, our leaders became very concerned about the establishment of a second track when we knew that a number of issues relating to the first set of tracks had not been resolved. We applied for an injunction on behalf of 36 communities and three Nations to stop the railway from dumping into the river system to create the foundation for the building of a second track. We wanted to ensure that the issues from the first track were addressed.
The injunction has been in place against CN Rail further dumping into the Thompson River since April 1, 1985. Their intent was to build along the Fraser system to support a second track, which would mean a second impact for all our communities. It would have an impact on the river system and the fishery. In one particular spot, they intended to fill 160 feet into the river, and we knew that that would certainly have an impact on our way of life. The fishery is the sustenance of our people. In addition to the establishment of the reserves that were unilaterally imposed, we now had the prospect of further impact when the initial issues had not been addressed.
The Chairman: British Columbia has a unique and challenging situation to deal with, as was well described by Ms. Abbott. There are more complexities to it and I believe that her recommendation has great validity. She does not have the time, in one presentation here, to describe all the challenges in British Columbia. The unilateral imposition of reserves in the early 1900s was dictated by an individual commissioner. I gather that there were more than one commission that relegated these people to small pieces of land that did not reflect the lands they occupied at the time.
Ms. Abbott, we thank you for your presence here today, for your presentation, and for the candid way in which you responded to questions. We will take your suggestion to travel to B.C. under advisement. I am not sure whether we will be able to get there, but, if we cannot, we may bring in other witnesses who can further assist the committee to make recommendations that will work effectively for the people from your province and mine. Thank you again.
The committee continued in camera.