Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 11 - Evidence - Meeting of November 22, 2006
OTTAWA, Wednesday, November 22, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 6:15 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.
[English]
The Chairman: It is my pleasure to welcome you to the Standing Senate Committee on Aboriginal Peoples. I am Gerry St. Germain from British Columbia. I am privileged to be the 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 this matter.
I will introduce the members of the committee. On my left is Senator Nick Sibbeston, deputy chair, from the Northwest Territories. Next to Senator Sibbeston is Senator Lovelace Nicholas, from the province of New Brunswick. Beside Senator Lovelace Nicholas is Senator Dyck, from the province of Saskatchewan. Next to Senator Dyck is Senator Hubley from Prince Edward Island. On my right is Senator Watt, from the province of Quebec, and beside him is Senator Leonard Gustafson, from the province of Saskatchewan.
Colleagues, as our first witness, we are pleased to have with us Ms. Gillian Allen, a researcher for the Union of Nova Scotia Indians.
Gillian Allen, Researcher, Union of Nova Scotia Indians: Thank you Mr. Chairman. On behalf of the Union of Nova Scotia Indians, known as UNSI, I thank this committee for the opportunity to address it on the question of specific claims.
The union was established in 1969 and is a tribal council representing seven of the 13 Mi'kmaq nation bands in Nova Scotia. From 1973-92, it conducted its own specific claims research, preparing and submitting claims on behalf of its member bands. In 1992, the union founded the Treaty and Aboriginal Rights Research Centre, known as the TARR Centre, with a mandate to conduct the research and produce the specific claims submissions of the seven UNSI bands.
Twenty-nine claims from Nova Scotia have been filed with the federal government, and of those 29, only two have been settled and negotiated, one in 1973 and one in 2001. Nineteen claims remain in the system, somewhere with the Specific Claims Branch or the Department of Justice. Others have been resolved by other methods or no lawful obligation was found.
In our written submission, appendices A, B, andfigures 1-4 provide brief details of all the Indian lands in Nova Scotia with some key dates in Indian lands administration, and the location of reserves and other Indian lands in the province.
I will turn to the first of the seven questions set out in your terms of reference, the stages of delay in the specific claims process. The Nova Scotia claims are delayed as all claims submissions, as soon as they are filed, are sent out to a private research firm to be completely re-researched. This can delay the processing of the claim for anywhere from months to years. It is difficult for us to understand why every claim requires counter or confirmatory research.
The second stage at which we find considerable delay isat the Department of Justice review stage. Claims forwarded to DOJ never seem to return.
The third stage in which delays occur is in the negotiation stage. Once a claim actually reaches negotiation, delays can occur with months or years separating offers, counter-offers and negotiations sessions. Within the research organizations in Nova Scotia, delays occur most frequently in the research stage and the document assembly stage. These are occasioned by the sheer magnitude of the research required for every claim, and the number of documents that must be collected, copied and transcribed to accompany every claim filed. The second stage is in meeting what is called ``the band-to-the-land'' test of the beneficiaries' policy. More details of this policy and its position in Nova Scotia are found on pages 8-9 of the written brief. Researching and preparing the beneficiaries brief takes time and is a separate research process from the preparation of the statement of fact or the narrative of the history of the claim.
These delays, both within processing and the production of a claim by a research organization, are answered by the next question posed in your terms of reference. Neither the federal government nor the research organizations have sufficientin-house expertise to deal effectively with claims. More human, financial and other resources could eliminate most of the delays, both in the production and the processing of claims. More staff is required in the Specific Claims Branch, in the negotiations directorate of Indian Affairs, and in the specific claims section of the Department of Justice.
It would be more efficient to divide both the specific claims research team Quebec-Atlantic and the negotiations directorate Atlantic-Quebec team into separate sections with one research team and one negotiation team dealing solely with the specific claims of the Mi'kmaq and the Wolastoqiyik or Maliseet First Nation regardless of province of origin.
Staff turnover has been a problem at the federal government level in both the Department of Indian Affairs and the Department of Justice. While less of a problem in the research organizations, we do not have the resources to hire and retain sufficient staff to quickly and effectively produce the claims documents and conduct all the research necessary for a complete claim submission. Having more people requires more money.
In the Specific Claims Branch, any new hire should have a strong background in historical research, be very familiar with both primary and secondary sources, and be able to analyze and judge the sufficiency of historical research submitted by the claimant in support of its claim, and personnel in the negotiations directorate should be intimately familiar with the First Nations with whom they will be dealing.
In the case of the TARR centre, not only is a larger budget and more support staff and more researchers required, we have a difficulty with the current year-to-year funding arrangement. It makes it very hard to plan effectively and efficiently for both longer-term projects and to conduct all the research necessary. You will find more information on the financial difficulties on pages 19-22.
In Nova Scotia, it is particularly important that the historical grievances of the First Nations are resolved as Canada, Nova Scotia and the Mi'kmaq Nation in Nova Scotia are currently engaged in negotiations to establish a new relationship recognizing the treaty rights and the Aboriginal title and the Aboriginal rights of the Mi'kmaq Nation. Settling all the specific grievances of the nation with regard to its reserves and other lands and administration of its assets will assist in establishing a good bargaining relationship and will demonstrate to the Mi'kmaq Nation in Nova Scotia that the Crown is prepared to negotiate in good faith to resolve all outstanding issues.
Just before concluding, UNSI wishes to raise the matter of special claims or claims which do not fit neatly within the comprehensive specific claims division. Under the current policy, for example, it is impossible for the Mi'kmaq Nation to seek redress for the effects of the centralization policy of the 1940s. The special claims unit and the manner in which a research organization may obtain funds to fully document and present a special claim, and how one actually triggers the special claim process remains a mystery to us.
In conclusion, I would like to take this opportunity to leave you with eight suggestions for recommendations to be made to the federal government to facilitate the resolution of the documented historical grievances known as specific claims.
One, increase the number of staff in both the Department of Indian Affairs and the Department of Justice tasked to deal with specific claims and increase the financial resources allocated to all stages of the specific claims process. Two, improve the training for Specific Claims Branch and negotiations directorate staff. Three, divide both the Specific Claims Branch research Quebec-Atlantic team and the negotiations directorate Atlantic-Quebec team to establish sections which will deal exclusively with specific claims of the Mi'kmaq and Wolastoqiyik nations, regardless of where and when those claims arose. Four, deal with staff retention and expertise in both the Department of Indian Affairs and the Department of Justice.
Five, increase the funding to research organizations to permit them to hire sufficient staff and pay the costs of research, claims production and overhead. Six, amend the manner of funding research organizations to allow them to engage in long-term planning and longer-term projects. Seven, continue to work with the Assembly of First Nations, the research organizations and the First Nations leadership to develop an independent claims assessment and adjudication mechanism. Eight, in consultation with the First Nations of Canada, develop a working mechanism to deal with matters of concern and historical grievances which do not fit within the parameters of the current comprehensive claim and specific claims policy.
The Chairman: Thank you for your presentation. You mentioned something, Ms. Allen, in regards to the 1940s centralization program. Could you elaborate on that program?
Ms. Allen: You will find my brief notation on the centralization policy at pages 25-26 of the written brief. If I might, senator, after the session is over you may wish to consult with your staff member, Ms. Patterson, as her M.A. thesis, which I cite in the brief, deals with the effects and the application of a centralization policy. Briefly, in the early 1940s, and specifically I believe 1942, the federal government determined that all Mi'kmaq in Nova Scotia should be centralized under two reserves; one, Indian Brook or Shubenacadie on the mainland and Eskasoni on Cape Breton Island. Every other reserve in the province would be sold.
The policy caused tremendous upset within the nation. Some families moved but some did not. Some reserves were entirely depopulated. In other cases, the grand chief of the Mi'kmaq Nation at the time, Grand Chief Gabriel Sylliboy, was removed from the Waycobah Reserve to Eskasoni and then moved back because the housing, the schooling and the jobs his people had been promised did not arise.
Veterans of the Second World War returning homein 1946-47 found this tremendous upset going on and many of them simply took their families and left. This was the beginning of a significant exodus of people who could have been potential leaders of the Mi'kmaq Nation. They simply moved to the States and their families remain there. They come home for what is called mission week at St. Anne's, the patron saint of the Mi'kmaq Nation, and for holidays and that is it. The effects are still felt 60 years later. If you go to Eskasoni there is still a divide on what is called the Castle Bay side of the reserve and the old side of the reserve. There are family tensions that remain.
The Chairman: That is an area that comes under special claims because it does not fit under the guise of specific claims or comprehensive land claims. Why would they not fit under specific claims; it seems like they should.
Ms. Allen: With great respect, if someone from the research and negotiations funding unit appears before this committee perhaps you might ask them. For the last 13 years, we have put it on the proposed work plan of the Treaty and Aboriginal Rights Research Centre to amalgamate, coordinate and collect the documentation from two significant studies. The studies are from the Department of Indian Affairs and Ms. Patterson.
We have been told each time that the effects of the centralization policy do not accord or fit within the six heads of claim of a specific claim, and so we ask them in turn where it does fit. This is very important to our members. We are asked every year by the seven chiefs of the union bands what is happening with centralization, and every year we have to say that they will not fund us, and we do not know how to get funding to put together a special claim. We do not know what a special claim is. No one will tell us that either.
Senator Hubley: Thank you very much for your presentation, Ms. Allen.
You have given us a lot of information on how you see the system working on specific claims in Nova Scotia. If you had the funding, would the process work? I will go beyond that question. We have heard from other witnesses that there is great difficulty with how the system is progressing because of the length of time it takes. You have certainly indicated that in your presentation.
Can you evaluate the process and give us some suggestions as to how it could be improved to make it work within a time frame that would be acceptable to both First Nations and the government?
Ms. Allen: There are in excess of 800 claims in the systemfrom across Canada. In their testimony before this committee, Ms. Audrey Stewart and Ms. Dupuis noted that there are 309 claims with the Department of Justice. In the case of claims from Nova Scotia, those with which I am most familiar, some went to the Department of Justice seven or eight years ago, and they have never returned.
To make the system work, more resources have to be allocated at two ends. There is great complexity in the land and history of the First Nations in Atlantic Canada. Senator Lovelace Nicholas's ancestors and my employer, the Mi'kmaq, were two of the First Nations that met incoming Europeans. There has been much contact in over 500 years, so we have very complex claims.
Those claims take a long time to put together. Once they go into the system, the hold-ups appear to happen in those three stages. There does not appear to be the capacity at the initial filing stage for people within the Specific Claims Branch, the Quebec-Atlantic team, to read through our 300 page statement of fact, the 17 or 18 books of documents accompanying the claim and the statement of claim. There does not seem to be enough people to assess whether this has to go out to a private firm that, incidentally, the taxpayers pay to redo the entire claim.
The special claims branch needs more staff with a background in historical research. This staff must have some training on the legal and factual points necessary for a specific claim. This staff must be prepared to read the claim that often has 10 pages of primary and secondary resources and see that the researchers have gone to the Library of Canada; the Archives of Canada; the Saskatchewan provincial archives; the legislative library; and to Early Canadiana Online, a database of over 2 million pages of early Canadian documents. The staff should be able to determine, when it looks complete, to send the claim to the Department of Justice for a preliminary assessments.
This is where the second delay occurs. The cases go to the Department of Justice and do not return. I went to the government electronic delivery service and counted 24 lawyers in the specific claims section of the Department of Justice. As you heard in testimony, there are currently 309 claims with Justice. I practiced law for a while before I went back to school for my masters degree. I can tell you from having worked with a large firm that many litigation lawyers and corporate commercial lawyers handle more than 13 clients at a time, which is the average of 309 claims divided among 24 lawyers, without having to take six, seven or eight years to assess something. There is clearly a bottleneck at the Department of Justice.
From our perspective it appears to be turnover. As soon as one person gets the material, it is assessed. If the person leaves the department, the process has to start all over again with a new lawyer, who is unfamiliar with the area, the geography, the First Nation and the industry. When that person leaves the department, the whole process starts again.
We then move to the next stage, assuming a claim is accepted for negotiation. Four people are assigned to the Quebec-Atlantic team. If one goes to the public status reports available from the Department of Indian Affairs and removes all the subtle claims, all the claims in which there was no lawful obligation, all files closed, there are 110 open claims somewhere in the process between the special claims branch and Department of Justice in Quebec-Atlantic. There are four people to negotiate 110 claims, many of which are extraordinarily complex and difficult to deal with factually and for many other reasons. That is not enough people.
I am a very big fan of long-term, three- and five-year projections and planning. To make the process work, they must determine their staff needs, assess why there is such a turnover in both the Department of Indian Affairs and the Department of Justice in this particular area, and fix it. What is wrong with the working conditions to cause people to leave as soon as humanly possible? They must fund enough staff to allow these claims to be processed more quickly.
I believe that every claim is valid, but those for which no lawful obligation might be found should be moved more quickly over to the claims commission for an assessment by an outside body.
We need more money in order to do the work more quickly. We have to find the problems. We have to hire more people who understand historical research, understand the history of the First Nations with whom they will be dealing and the current state of the First Nations.
Senator Hubley: We have also heard some witnesses suggest, on the subject of research and the amount of historical data that has to be brought together, that perhaps that could be done jointly. Rather than you researching a claim that you are going to put forward and then having the research repeated at the Specific Claims Branch, perhaps both sides could bring their expertise to the table in order to avoid the duplication of work and create a working body to work this claim through the system.
Ms. Allen: I do not disagree with joint research initiatives. In a previous claim, we used a joint research team for one particular area of research. The independent contract researcher who did the work was very good. We had a very good working relationship with the people in the Specific Claims Branch and it worked very well. Of concern to my employers and to other First Nations is the question of control of the research. For example, in the standing offers which are let by the Department of Indian Affairs to obtain standing offers from researchers to do work, although I assume it is not meant to apply specifically to a joint research initiative, these standing offers for a researcher who takes on one of these projects has a very clear confidentiality agreement. It says to any researcher working and employed by Indian Affairs as a contract researcher, thou shalt not talk to the First Nation or anyone in the First Nation without the prior consent of the designated department official.
Now, I assume that is not meant to apply in the case of a joint research initiative, or else, for example, a First Nation chief would not be able to pick up a phone and call the researcher and say, how is that work going on our claim, without being told, I am sorry, but I cannot speak to you until I have called Ottawa and obtained permission.
I am sure that was not the intent, it is, as I say, a boilerplate, but it could be applied in that way. Given the past history between the departments and some of the First Nations there is concern.
In terms of efficiency, it would be beneficial if one could work with specific claims members that have the requisite knowledge of the First Nation, of the claim, of the geography and lands and the research organization. Specific points to be covered could be discussed and if the research was agreed upon and was completed there would be no need for counter research. Theoretically that would be the best way to go because you have already eliminated one the immediate delays in the system.
The question I submit from my employers and for many others First Nations people is a question of legitimacy in terms of the control of the work.
Senator Hubley: That would have to be mutually beneficial to both parties.
Senator Lovelace Nicholas: What do you think is the reason for the delay; do you think it is intentional?
Ms. Allen: Not maliciously intentional, in the sense that there is someone sitting there saying darn it the longer I can delay this, the better off we will be as a department. There simply does not seem to be enough staff. For example, on the Specific Claims Branch research Quebec-Atlantic team, the group that initially receives a specific claim submission, from New Brunswick or Nova Scotia or Prince Edward Island, has five members in total: three full time staff and two students. At the moment, there are 110 open claims from Quebec and the Atlantic provinces. How are five people, two of whom are students, supposed to deal with getting the claims in and shepherding them through the system? How are five people supposed to shuffle them off and coordinate with the negotiations directorate to make sure everything keeps going? They simply cannot do it. The two students are clearly on a learning curve, and of the three staff members, only one of them has been there for more than two years. Mr. Wayne Daugherty, who was knowledgeable about the Atlantic region retired. Each time someone new comes in, there is a new learning curve. That learning curve slows the process down once again.
We had an example last summer. As I indicated, the Union of Nova Scotia Indians represents seven of 13 bands; the Confederacy of Mainland Mi'kmaq represents the other six. They too have a research unit, their land claims and research unit, which does the specific claims work for the six confederacy bands.
In Nova Scotia, three reserves were surrendered in 1919. It is known as the Halifax County surrender. There is another reserve completely separate the Shubenacadie Grand Lake Reserve, which has a timber claim, among other things. The three Halifax county 1919 surrenders are joint claims of the Shubenacadie band, which is a union band, and the Millbrook band, which is a confederacy band. In that particular instance,the confederacy took the lead to do all the research on these1919 surrenders. The Shubenacadie Grand Lake Reserve and claim is a solely Shubenacadie or union band claim.
This summer, my colleague at the confederacy received instructions to complete the timber claim reserve research and prepare that as part of the 1919 surrender claim because they should ``all be together.'' We had already filed the Shubenacadie Grand Lake timber and licence of occupation claim, it was already in the system. Clearly they had not even read the documentation or the claims documents. Further, I suggested that someone from Indian Affairs tell Chief McDonald of the Shubenacadie band that he would now have to share his exclusive claim with Chief Lawrence Paul and members of the Millbrook band. I certainly was not going to be the one to tell him Indian Affairs could not tell the difference between two different organizations and did not know anything about the structure of the contemporary Mi'kmaq Nation in Nova Scotia.
The delays are inherent not only in the lack of people, it is the lack of knowledge about the nations, both historically and in their contemporary state with whom these bureaucrats deal. To be fair it is not necessarily their fault. They transfer in, they take a position, and are expected to work without proper resources or a good thorough training session to give them the information they need to be up to speed as quickly as possible.
Senator Lovelace Nicholas: I will make the next question short.
Do you think using archaeologists is a benefit to these specific claim hearings or do they actually hurt the case?
Ms. Allen: I should say, senator, in the interests of full disclosure, for three years I taught in the anthropology department at Saint Mary's University in Halifax and have very good friends who are archaeologists. I do believe in many instances, yes, the more information one has the better; it is as simple as that. The more information and the more prepared you are, the better you are. In some instances, for example, along some spots of the Saint John River, it is necessary to use archaeology. This may be the only way to receive or obtain the information necessary for the nation to assert its claim because these are specific claims that can date back 300 years.
Senator Dyck: Welcome. You have a very comprehensive document here for us. My questions are related to the research process. You have talked about the magnitude and complexity of the research that has to be done. At the same time, you almost sounded like you were beginning to outline the essential elements of the research.
Do you think it is possible that there could be a framework or a summary set out that could be undertaken jointly, or perhaps even separately? Do you think that the joint team or the two teams, the First Nation versus INAC, could have the same research aims and move toward the same goal?
One of our other presenters said that when a First Nation is successful in its specific claim, it does not necessarily know why it has been successful.
Do you think it is possible to make an outline to help the people make a successful claim?
Ms. Allen: I think it depends. Does that not sound like a lawyer's response? I apologize.
In some instances I think it would be relatively easy. For example, we have six heads of claim, for lack of a better description, the four original plus the fraud and the taking of use for a public purpose. There are certain elements to meet that you would have to show. If it is the administration of an Indian asset, you would have to show how it is maladministered.
If there was a list of elements stating this is what we expect to see in every claim, this is the kind of historical information, it would certainly make it much simpler. One would think, not only for the party conducting the research, but also for the person assessing the research to know that they have sent this out and said this is what we need. This is what the lawyers and Department of Justice have told us is necessary. When you are doing your research, when you are gathering all your information about the history of a particular piece of land or a particular trust fund, you should be looking for these elements. That is important for two reasons. One is to ensure your claim is successful, but, also, sometimes we have to deliver the bad news.
In our situation, for example, with the treaty centre, a band will approach us with a problem and a specific claim. We are charged with researching the claim and we prepare an initial preliminary assessment, which is reported to the band. We tell the band what we discovered in our research. Sometimes we have to give them the bad news, from their point of view, and say we simply do not see that it amounts to a misadministration of Indian lands or an Indian asset. It may be something else, but it will not meet any kind of test. When we go to our bands, and when we do our public and continuing education sessions with our bands and the leadership and in the general community, if we had an outline of the general elements that would make that part of the process a more efficient.
Senator Dyck: What about that same sort of list being used to train people in Indian Affairs or the Department of Justice?
Ms. Allen: Yes, my thoughts are in my brief.
Senator Dyck: Do you think a framework could be put together that researchers like yourself, that work for a First Nation, as well as the researchers from Indian Affairs could agree to, so that it would help speed it up and make it more efficient as well?
Ms. Allen: Absolutely. In addition to doing historical research work, I develop and deliver training sessions for claims researchers for various bands. I go through the process and say this is what you have to do; these are the kinds of documents and so on. If we had that same sort of thing delivered to every incoming employee in Indian Affairs, and perhaps even in the Department of Justice, when lawyers receive this information to assess a claim, they would be familiar with the history of the First Nation whose claim it is, as well as the available resources.
In some instances, for example from the Prairies, a great deal of the information relating to First Nations is contained at Library and Archives Canada. It is spread all over the microfilm but it is in one place. In the case of the First Nations of Atlantic Canada, our information is everywhere from legislative libraries, to community libraries, to Nova Scotia Archives and Records Management, and in Ottawa at the Library and Archives. Even determining where it might be sometimes takes months.
If the Justice and Indian Affairs officials were familiar with the research process — and the elements that the lawyers will look for in Justice, as well as the historical stuff — I believe it wouldspeed-up the process. Developing a joint framework for the delivery of these training sessions would be a great way to go about it.
The Chairman: Thank you, Ms. Allen, for the presentation you made and for your comprehensive brief. I know that we will be going over the recommendations and some of the details of your presentation, so we thank you again for the professionalism that you brought to the table tonight. If you have any other suggestions, do not hesitate to contact our Ms. Patterson with whom you are very familiar. Ms. Patterson has provided invaluable insight to this committee and she will have input in our report.
Our next witness is a representative of the Council of Yukon First Nations. Rick O'Brien is Regional Chief of the AFN Yukon. We welcome you here and thank you for coming. You possibly did not have to come especially for this, seeing you are part of the AFN, but I know how far it is from Yukon to Ottawa.
Rick O'Brien, Regional Chief, AFN Yukon, Council of Yukon First Nations: It is truly an honour to present the views of the Council of Yukon First Nations on the specific claims process.
First, I want to ensure you have a basic understanding of our constitutional circumstances with respect to a comprehensive and specific claims policy for Canada. I am fortunate to speak here today on behalf of our elected Grand Chief Andy Carvill, who works for the Council of Yukon First Nations. Yukon First Nations represents 11 of the 14 First Nations in Yukon, and my grand chief has a busy schedule. He sends his regrets for not being here.
On August 8, 1973, the Yukon First Nations successfully petitioned the Government of Canada to commence modern day treaty negotiations. The then Minister of Indian Affairs, the Honourable Jean Chrétien, announced the first comprehensive claims policy immediately following our petition and the Supreme Court of Canada's decision in the Calder case.
The Yukon First Nations had the great honour to work with Frank Calder, who recently passed away. It was through his foresight, and the determinations of our leaders in pursuing a just settlement of the land issue in Yukon and British Columbia that we have achieved the final and self-government agreements in Yukon.
Currently in Yukon, 11 First Nations have completed final and self-government agreements with respect to land rights in the Yukon territory. The White River First Nation, the Ross River Dene Council and the Liard First Nation have yet to conclude their claims. The other 11 First Nations have all completed their respective their final and self- government agreements. In this presentation, I will set out the basic construct of our final andself-government agreements and their relationship to the specific claims policy of Canada.
The Yukon First Nations decided to collectively pursue a settlement of their Aboriginal title and rights by working together. This commenced with the presentation of our petition to Canada in 1973, which was entitled Together Today for Our Children Tomorrow.
Through a common and united caucus, we negotiated an umbrella final agreement and a model self-government agreement. The umbrella agreement generally sets out the constitutional nature of the final agreement and the provisions of which must be incorporated into each succeeding final agreement of the subscribing Yukon First Nations. Every Yukon First Nation that decided to participate in the Yukon treaty process must negotiate the unique terms of its own final and self-government agreements.
As I previously mentioned, 11 First Nations have decided to file their respective treaties on this basis. Throughoutthis presentation, I will use the terms ``land claims'' and ``treaties'' in the same context as section 35(3) of the Constitution Act, 1982, which includes land claims agreements as treaties for the purpose of defining constitutional rights in section 35(1) of the Constitution Act. All of the rights, titles and interests of the Yukon First Nations in the final agreements have constitutional rights that are entrenched and protected under section 35 of the Constitution of Canada.
The final agreement has included certainty clauses that have sweeping effects in that all claims against the Crown are generally released, unless expressly provided otherwise, in the final agreement. For example, the Champagne and Aishihik First Nations final agreement in section 2.5.1.4 provides:
...NEITHER THAT YUKON FIRST NATIONS NOR ANY PERSON ELIGIBLE TO BE A YUKON INDIAN PERSON IT REPRESENTS, THEIR HEIRS, DESCENDENTS AND SUCCESSORS, SHALL, AFTER THE EFFECTIVE DATE OF THAT YUKON FIRST NATION'S FINAL AGREEMENT ASSERT ANY CAUSE OF ACTION, ACTION FOR DECLARATION, CLAIM OR DEMAND OF WHATEVER KIND OF NATURE, WHICH THEY EVER HAD, NOW HAVE OR MAY HAVE HEREAFTER AGAINST HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE GOVERNMENT OF ANY TERRITORY OR PROVINCE, OR ANY PERSON BASED ON
(a) any aboriginal claim, right, title or interest ceded, released or surrendered pursuant to 2.5.1.1 and 2.5.1.2,
(b) any aboriginal claim, right, title or interest in and to settlement land, lost or surrendered in the past, present or future...
The final agreement, however, allows First Nations with reserves to retain them as reserves, and release provisions in the final agreements do not apply to these retained lands reserved or those potential reserves identified by the respective First Nations.
This means for the First Nations with final agreements there must be express provisions for the retention of specific claims against the Crown. These ongoing specific claims are retained in chapter 4 of each participating Yukon First Nations claim. These ongoing specific claims are generally time limited, and the First Nations and Crown must agree to continue any extension of the time limits to ensure these specific claims are considered and settled in a fair and timely manner.
In addition, the specific claims related only to breaches of the Crown's statutory or fiduciary obligations on reserve lands and do not appear to cover breaches of the Crown's fiduciary obligations not linked to ``reserve lands.''
Although the Yukon, as part of the Northwest Territories, was admitted as part of Canada in 1870, the Crown as part of its constitutional obligations agreed to settle the claims of the First Nations prior to non-native settlements in conformity with principles that guided the British in their treatment of Aboriginal peoples in Canada. We believe these constitutional obligations still form the foundation of Canada's obligation to Yukon First Nations.
As part of the reserve allocation policy of Canada, there are a number of reserves created in the Yukon. The Crown admits to six reserves, and the specific claims process has identified approximately six to 10 other reserves in the Yukon. Naturally, the specific claims policy applied to the fiduciary obligation of the Crown as currently contained in the specifics claim policy of Canada.
The current specific claims policy, however, does not simply limit the Crown's obligation to wrongful surrender of reserve lands as the current policy allows for claims that are premised upon breaches of the fiduciary obligation of Canada.
In the context of Yukon, for example, the Kluane First Nation was successful in obtaining a ruling of the Indian Claims Commission, which acknowledged that the loss of harvesting rights in the Kluane game sanctuary over a 30- year period could constitute as a valid specific claim as it was a breach of the Crown's fiduciary obligation to the First Nations. Although Canada did not accept the ruling of the Indian Claims Commission on this matter, it did provide monetary and other compensation in the Kluane First Nations final agreement.
Recently, the Supreme Court of Canada has set out criteria respecting the establishment of reserves in the Yukon and it is limiting. Since 1870, the Crown for whatever reason created reserves by setting lands set aside for the benefit of Yukon First Nations.
The Supreme Court of Canada in the Ross River Dene Council Band v. Canada decision held that these set-aside lands are not considered reserve lands for the application of the Indian Act. This should not be interpreted as legitimizing breaches as the Crown's fiduciary obligation with respect to those set-aside lands. The nature of the Yukon final agreement allows each of the participating Yukon First Nations to retain its share of the 16,060 square miles of retained land as Aboriginal title equivalent to fee simple; 91(24) reserve lands with application to the Indian Act; 91(24) lands within the Yukon First Nations government powers applying and/or some limited fee simple lands with or without self-government jurisdiction application. To date, all Yukon First Nations with a final agreement have elected not to retain 91(24) lands with the application of the Indian Act. Of the total amount of the 16,060 miles of land, approximately 16,000 square miles of lands are retained under the Aboriginal title equivalent to fee simple, and approximately 60 square miles can be retained under the 91(24) lands ownership. This means that the Crown in right of Canada continues to retain title for these 91(24) lands for the use and benefit of that participating Yukon First Nation. It is debatable about whether the Aboriginal title lands are also 91(24) lands.
The Yukon final agreement was negotiated without the benefit of the Delgamuukw and the Haida Nation Supreme Court decisions respecting the nature of Aboriginal title and the honour of the Crown, as those decisions occurred after the legislative ratification dates of the Yukon First Nations final agreement.
Although the Yukon First Nations final agreement provides various land tenures including 91(24) lands, it is our view that the form of retention of Aboriginal title is consistent with the principles articulated in the Delgamuukw decision.
It is also our considered view that although the Yukon First Nations final agreements have provided for a definition respecting the Crown's obligation to consult, we believe that we have access to the evolving principles of the common law on consultation and accommodation, and that the Crown's fiduciary obligation continues, including the judicial principles respecting the honour of the Crown. The recent Federal Court of Canada judgment on the Dene 'Tha supports our view on this matter.
The Yukon self-government agreements are given effectby federal legislation under 91(24) of the ConstitutionAct, 1867. These agreements, unlike the final agreements, are not constitutionally entrenched under section 35(1) of the Constitution Act, 1982.
As the Yukon First Nations are successors to the Indian bands, they replace all rights, titles, interests, assets, obligations and liabilities, including those of its band council now vested in the newly created Yukon First Nations. This means that any and all legal rights, including specific claims, are now vested in the Yukon First Nations.
The legislative jurisdiction of Yukon First Nations can be described as paramount concurrent jurisdiction in that the occupation of a legislative field by the Yukon First Nations would displace conflicting laws of Yukon on the same subject matter. Comparable rules of conflict have not yet been negotiated with Canada.
The legislative model allows laws of general application to apply until the First Nation decides to occupy the field, and these territorial and federal laws of general application will apply to the 91(24) lands until they are displaced by conflicting First Nations legislation.
With respect to specific claims concerns, in the past the council of Yukon First Nations has supported the expansion of the adjudicative powers of the Indian Claims Commission. We believe that the Indian Claims Commission is a toothless tiger and cannot enforce or bind its decisions on any of the parties, especially the Crown. The Kluane First Nation National Park specific claim is an example of this lack of enforcement capacity of the Indian Claims Commission.
The constitutional circumstances of the Yukon and the North are unique, as I have explained.
We feel that we should be represented in any adjudicative body that would have an impact on our settlement lands, our reserve lands or our lands set aside. The rules of impartiality and conflict of interest should reduce potential conflicts on a body such as the Indian Claims Commission.
In addition, there are approximately 1,000 outstanding specific claims. Any adjudicative body must have the latitude to impose settlements and, if a cap is necessary, then we would be supportive of a larger monetary award cap such as $10 million.
With respect to the Yukon issues, the time limited filing opportunities should be revisited to ensure that Yukon First Nations are not penalized as there are no such specific claims time frames for treaty people in southern Canada.
We also believe that the fiduciary obligation and the honour of the Crown should require more enlightened specific claims policies to ensure that evolving and contemporary constitutional principles are embedded in any future specific claims policy or legislation. As part of the honour of the Crown, Canada, we believe has an obligation to consult on such far reaching specific claims policy implications. As part of this analysis, the existing reserves, the de facto reserves or lands set aside in Yukon and the release provisions that may impact unique Yukon circumstances should be re- examined by the parties to the final agreement to ensure that the honour of the Crown is reasonably applied in Canada.
In addition, any monetary settlements received or interest earned on such specific claims settlements should not be reduced by inclusion as ``own sourced revenue'' by government. As these are generally ``heritage'' or ``legacy'' settlements, these funds and any interest earned should not be taxed by the government.
The First Nations in Yukon that do not have final orself-government agreements should not be penalized by denial of access to similar forms of land tenures that are enjoyed by those Yukon First Nation with final agreements, and this includes consideration of reserve status lands if requested by those First Nations. The honour of the Crown would at least inform such policy considerations on the basis of fairness and reasonableness.
In conclusion, I have tried to set out the unique constitutional status of Yukon First Nations as it may relate to the specific claims. I have also set out some general concerns and have suggested potential solutions to remedy these concerns.
Again, I would like to thank the Senate committee for allowing me to share this presentation with you on behalf of the grand chief and Yukon First Nation chiefs.
The Chairman: Thank you, Mr. O'Brien. With regard to this Kluane claim, was there a park established there?
Mr. O'Brien: Yes, Kluane National Park.
The Chairman: Were hunting rights extinguished when it was established as a national park?
Mr. O'Brien: Yes, they were excluded. Hunting was not allowed in the park for a number of years until the court case came down, after which they were allowed to go back into the park to hunt. They were denied the right to hunt there many years. It was the traditional hunting ground for a lot of people.
The Chairman: Can you explain to the committee why the specific claims still exist? If you went into comprehensive land claim settlements, were you not able to settle everything at that time?
Mr. O'Brien: No, we were not able to settle everything at that time. We wanted certainty, as did industry and government. We were looking to improve our economic opportunities at that time with the understanding that we can set the specific claims aside and deal with them at a different table.
Senator Dyck: Thank you for your comprehensive overview. I notice that a fairly large number of the claims were rejected by the specific claims process. As a general opinion, are you satisfied with the way the specific claims process is set up? Do you feel that there are significant flaws in the way claims are processed?
Mr. O'Brien: Anything you do you will find wrinkles that need to be ironed out, and you will find flaws. However, we should be allowed the opportunity to revisit it based on the flaws found and see what we can do to remedy the situation. That is what we are looking for. We believe there is a solution to everything.
Senator Dyck: In terms of your research, would you be able to find supporting evidence for your claim? Has that been a factor in not being able to convince the specific claims people?
Mr. O'Brien: I do not think it is the supporting evidence. The problem lies with the policies.
Senator Dyck: Could you elaborate on that?
Mr. O'Brien: I mean the criteria, the guidelines and the time frames.
Senator Dyck: Could you elaborate on the time frames?
Mr. O'Brien: As I outlined in the briefing note, it is time limiting. As a First Nation from Yukon, I have a hard time understanding the agreements unless I have my lawyer sitting beside me. We lack the resources. Therefore, I have to be here by myself. There are some questions I will not be able to answer without our lawyer. Most First Nations need these legal opinions because of the complexity of the claims. You need your lawyer also to explain to elected officials.
The Chairman: Is there a crossover in the North with the Gwich'in?
Mr. O'Brien: Yes, they also extend into Alaska, the 1002 lands, right into the Northwest Territories.
The Chairman: Is it watersheds that basically determine the boundaries of the Yukon First Nations?
Mr. O'Brien: No, not at all.
Senator Watt: You mentioned in your presentation that there is a nation or a group that still does not have their comprehensive claim; is that what you said?
Mr. O'Brien: Yes, there are three First Nations in Yukon. There are 14 First Nations in Yukon. Out of the 14, 11 have final agreements.
Senator Watt: Are you saying that the people who do not have comprehensive claims cannot have their concerns met through the specific claims?
Mr. O'Brien: I think some concerns can be met through the specific claims.
Senator Watt: Will they be speaking for themselves to highlight that at some forum down the road?
Mr. O'Brien: Eventually, that is what we are hoping. We hope they will speak for themselves. I am elected to representall 14 First Nations in Yukon. I was asked to come here to substitute for my grand chief because of his busy schedule.
Senator Watt: Were there any dispute settlement mechanisms attached to your comprehensive claims?
Mr. O'Brien: I am not sure, but I imagine there is an appeal process of some sort.
Senator Watt: If there are certain issues that are subject to interpretation that require further clarification, I would imagine those could easily be resolved through a dispute resolution mechanism, if one exists.
Mr. O'Brien: I would imagine that, too. The claims that we have in Yukon are signed by all parties, the Yukon territorial government, the federal government and the First Nations themselves. Implementation should be no problem. It should be like bang, bang. You think it should be a slam dunk deal. However, after 10 years, we find ourselves at the table still talking about the final transfer agreement. We are still having problems implementing the deal.
We feel the true spirit and intent of the deal should have started to benefit us by now. It is still in the infant stage.
Senator Watt: If a clear understanding could be established by going into the depths of your text here and if they could be identified as being easy to deal with, not through the specific claims process but through another process, such as dealing with the conflicts between your people and, let us say, the federal government, would you be prepared to look at that?
Mr. O'Brien: We are prepared to look at whatever avenue can bring resolution to any conflicts. However, we understood this was the avenue to take, and that is why our conflicts are at this table.
Senator Watt: I have one more question. The map handed to us shows your claims under review, from Turtle 8 to Turtle 16.
Mr. O'Brien: I do not have the map.
Senator Watt: Where did the map come from?
The Chairman: It was provided by the research branch of the Library of Parliament.
Senator Watt: I would imagine that INAC is fully aware of your concern.
Mr. O'Brien: I would like to believe that, yes.
Senator Watt: Otherwise, I do not see how they could provide this information unless they also recognize the fact that they are outstanding issues to be dealt with.
The Chairman: The research branch sought out the information so that the committee would be informed and have reference material at the ready.
Senator Watt: I would imagine that INAC has copies too.
The Chairman: That information does come from INAC, yes.
Senator Watt: That clears it.
Mr. O'Brien: I am not sure what the communication process is within the departments. I would not know if Indian Affairs has a copy of this.
Senator Sibbeston: Thank you, Mr. O'Brien. I want to ask you in a general way how things are going for the First Nations people in the Yukon? Has the umbrella land claims agreement, which I believe was concluded in 1992 and a little later for a number of the 11 specific ones, really improved life for the Yukon First Nations very much?
Mr. O'Brien: It is like I said earlier. I will give an example. Under section 17, we have jurisdiction over education and the right to draw down education. However, that is where we are stalled at the Programs and Services Transfer Agreement, PSTA, table talking about the financial aspects if we draw down certain provisions of the lands claims. The financial transfer agreements go from the federal government to the territorial government. A block of funding comes for education. What does that cover? How broad is it? Is it for capital expenditures and MOUs? We have education, but what does that cover?
I will give you a hypothetical situation. Let us say in a remote community with an existing school, the First Nations has the right to draw down education under their final agreements, entrenched in the Constitution under section 17, jurisdiction over education. Hypothetically speaking, can we work as co-governance or have two separate education systems in a remote community? How do we break down the financial transfer to the territorial government for education? Do we access the capital that goes to them on our behalf, because essentially that is our agreement? We are looking for ways to work in unity to help all citizens in each jurisdiction.
Senator Sibbeston: What has your relationship with the Yukon government been like over the last few years? Has the relationship become better than it had been in the past?
Mr. O'Brien: It is always a challenge, no matter the government in power. It is the policies and the procedures that guide the elected officials. If we were to look at improving things and streamlining the system, it would not matter which political party was in power. It is the agreements on the table and the criteria set out with those agreements to implementing them that count. As I said, it has been 10 years and I gave you my personal opinion.
Senator Sibbeston: Finally, with relation to the Kluane National Park, what has been the relationship between park officials and the Kluane First Nation people? Has it been good or bad?
Mr. O'Brien: I am not too sure about that. I am a Kwanlin Dun First Nations member, which is separate from the Kluane First Nation. I live and hunt in a different region. However, I have talked to people who have been there in the past, prior to land claims agreements and the court cases. Some people have been charged for killing a duck in the pond on the side of the road because it was on the wrong side of the road. An elder shot a moose on this side of the road and it ran to the other side and he was charged. Little problems eventually got worked out to the point where we were allowed to go back and practice our Aboriginal rights to hunt and fish in that park. Then, we came to an agreement after all of that.
Senator Sibbeston: Thank you.
Senator Watt: My questions is about the education that you mentioned. Do you not have a funding formula attached to your comprehensive claim?
Mr. O'Brien: That is my question because it is in the agreement. I focus on education because I like to use that hypothetical situation: Do we have two schools in each community? Will we have 14 separate schools? No, we were at the understanding that the funding goes to the Government of Yukon for education but it does not give a breakdown of the expenditures for education. When we negotiated jurisdiction over education, we figured the same principle would apply. In point blank answer to your question, no, there is no funding formula.
Senator Watt: Where do you get your financing forself-government?
Mr. O'Brien: We have agreements in place. We are running off the payments of those agreements.
Senator Watt: You are having problems in the area ofself-government as well?
Mr. O'Brien: We are experiencing several bugs in the system, you could say. We need to move on the agreements so that we can build our material and human resource so we can start working toward economic opportunities for everybody in the Yukon. We will be a major player in this field but for now, things are stalled and slow. The whole Yukon is sitting on pins and needles waiting for the day to come when we can all benefit. Premier Fentie can allude to that more.
The Chairman: Thank you, Chief O'Brien. We appreciate your taking the time to come here and give such a tremendous presentation. I am sorry for rushing you but time is our biggest enemy. We do want to get a report drafted as quickly as possible and your recommendations will certainly be taken into consideration by the senators. On behalf of the senators, thank you again.
Our final witness this evening is Chief Terrance Nelson of the Roseau River Anishnabe First Nation in the province of Manitoba. Chief Nelson, we welcome you here. Thank you for taking some of your precious time to be with us. We will ask you to make your presentation. We like to generally have time for questions, chief, so please proceed with your presentation. You have the floor.
Terrance Nelson, Chief, Roseau River Anishnabe First Nation: I will start in my own language.
[The witness spoke in his native language.]
I would like to thank the committee for the opportunity to present the understanding of ``treaty'' in relation to your view of the lack of progress for specific claims settlements. According to the information that was sent to me, the final report will be released on June 14, 2007, which is significant to our own time frame for First Nation actions.
Treaties were signed to ensure peaceful coexistence. As many First Nation representatives will and have testified, First Nation patience has run out. Let me make this perfectly clear: Caledonia is not an isolated incident. To me, it represents the future of indigenous and immigrant relations in these lands if we cannot settle issues in a timely fashion. We have heard much about the backlog of specific claims and the years of waiting. However, there are years more of negotiations to take place once the minister recognizes the claim as an outstanding lawful obligation, and many more years once the negotiations have ended with a settlement agreement, to get the settlement implemented.
National Chief Phil Fontaine has said the average time frame to settle a claim in Canada is 27 years. I also know a majority of the claims are being rejected by Canada even after the Indian Claims Commission recommends acceptance.
Our Roseau River Trust case on the 1903 surrender is one such case that was rejected even after we went through withthe ICC process. Roseau River entered into treaty with the Crown in 1871 and 16,700 square miles of lands were opened up for immigration and settlement. We now find that the promises made by Her Majesty's representatives were nothing more than lies used to gain access to our lands. The promises made so solemnly by the Queen's representatives were just that: promises. Once made, and once access was obtained to our lands, the honour of the Crown went into the garbage. To this day, the government has failed to restore the Crown's honour. The Queen's representatives promised us that our treaty reserve lands would be ours forever, and that the reserve lands would be for our sole and exclusive use and benefit.
``Sole and exclusive use'' translates into our Ojibwa language as the following.
[The witness spoke in his native language.]
Literally, it means that they will never allow the White man to enter into the reservation lands. At the time of that promise, the Crown representative pointed to the Northwest Mounted Police in the making of that statement. That, to our people, was Crown recognition of our sovereignty, our right to govern ourselves, explicitly expressed at treaty time, promising us that the Crown would protect our sovereignty with force, if necessary. Yet on January 19, 1993, RCMP put snipers in our fields as they hauled away gaming machines operating under the authority of our Anishinabe legislation. The Canadian army was on alert in Winnipeg.
Today, my community still has 77 per cent unemployment. My ancestors signed a treaty in 1871. Canada said, ``Sign this treaty and we will recognize your reserve lands as forever yours.'' But ``forever'' did not last long. About 32 years later, it took70 per cent of our reservation lands in the 1903 forced and fraudulent surrender.
The 1903 case is currently before the Indian Claims Commission, the longest case in active review, now 13 years in that process. We settled our treaty lands entitlement claim in 1996, after almost 30 years of intense lobbying, but, once again, we find ourselves in court in an application for declaration, asking the court to determine what constitutes a ``reasonable time'' for conversion of land to reserve status. In the 10 years since the TLE settlement, we have yet to convert one acre of land to reserve status.
In 1903, Canada took only 26 days to have anOrder-in-Council take the 12 sections of reservation lands out of reserve status. In 1905, it took Canada five days to have an Order-in-Council give the Birdtail Sioux lands to CN. That was a forced surrender. In Caledonia, it took the Ontario government less than 100 days to settle over $12 million for the White developers' losses.
Why does the land claims process work so quickly for the White guys, when we, as indigenous people, are being asked to be patient. In the 1903 surrender, it is now 103 years and counting. Why? The answer is very simple.
Canada mines 60 different metals and minerals. It is thethird-largest diamond producer in the world. There are 1.4 trillion barrels of oil in the tar sands and hundreds of other oil fields, tens of thousands of oil rigs pumping nearly 3 million barrels of oil out of the ground every single day. Fifty per cent of the economy in British Columbia is lumber, yet there are no stumpage fees for the original owners of the land.
There are no legally recognized royalties for indigenous peoples for the wealth of our oil and other natural resources, not even a lease payment for our lands; only funding at the discretion of the immigrant government. While the railway cars are filled with billions of dollars of our resources, our people are living in poverty, with inferior schools, inferior housing, inferior health and inferior lives.
Over $3 billion is taken out of the Manitoba resource base every year. Oil was $10 a barrel in 1999; it has reached up to $75 a barrel. Exxon posted a $10.4 billion profit in its last quarter, as reported in The Globe and Mail. The federal government posted a $13 billion surplus this year alone, yet it cuts $1 billion from programs, and much of that from First Nation funding.
The $9 billion that is designated for First Nations in fact really goes to the White people, not to us. For example, an Indian gets sick in Northern Manitoba, treated for cancer, tuberculosis or diabetes for a year. The doctors, nurses, janitors, drug companies and food servers, everyone in the health service industry delivery system, charge the government for the cost of treating the Indian. In the end, what did the Indian really get? He got the services and he got the blame. The average taxpayer looks at the bill and says: That damn Indian got paid $100,000 from my money. Yet look at Indian's bank account. Did he really get the money? Of course he did not.
The people who deliver the services get paid, as do the drug companies. Everyone gets paid from there. So the $9 billion, if you really look at it, is going to the service industry, not to the First Nations.
To me, the solutions are clear: a legally recognized royalty paid directly to the original landowners from the resource base revenue equal to 10 per cent of the value of all resources taken from the Canadian lands each year; internationally recognized homelands for the original inhabitants of these lands, the lands we reserved for ourselves in treaty; a truly sovereign self-governing territory for our people. If we could exercise our right to govern ourselves, a world-class casino in Roseau River would generate $100 million for my community per year.
In 1993 we were raided, 13 years ago. We would have generated by now $1.3 billion for my community alone. On June 29, 2006, I was going to initiate a national blockade of all railway lines in Canada to force the Government of Canada to honour the treaty terms and conditions, but once again we listened when the Minister of Indian Affairs asked for more time. I leave you with the CN information that states, among other things, that the Manitoba railway blockade alone would have cost CN $27 million a day.
I am Chief of Roseau River and Chairman of the Dakota Ojibway Tribal Council. I am a member of the Executive Chiefs of the Assembly of Manitoba Chiefs, spokesman for the Okiijida Warrior Society and the sole Canadian representative on the American Indian Movement Board of Directors.
I say to you that your work in this committee is very important. If you cannot convince your people to honour the treaties, we will have to enforce the treaties and stop the flow of money from the sale of our resources to your pockets until we can sit and sincerely speak to the terms and conditions of the treaties, the agreements that bought you the right to peaceful coexistence, in these, the greatest lands in the world.
I am very, very hopeful that your report will not end up like the Royal Commission on Aboriginal Peoples. We celebrated it yesterday the 10-year anniversary and it has gathered nothing but dust.
One must understand why the Royal Commission on Aboriginal Peoples was first instituted. It was only a yearafter the Oka crisis. There were 1,500 journalists at Oka and4,000 Canadian army soldiers facing off against 27 Mohawks in the treatment centre. Canadians almost ended up with very serious economic consequences because of that crisis. We do not want to go in that direction, but we must find a way to deal with the land claims issues.
I am being asked by Enbridge to allow a right-of-way in our traditional territory so that the Americans can get 450,000 barrels of oil a day flowing to Superior Wisconsin. The British Columbia First Nations are being asked to allow a pipeline that will pump 400,000 barrels of oil a day out to the Chinese.
I ask you why would we, who have 77 per cent unemployment in this, the richest resource-based economy in the world, just sit by and watch as our resource wealth flows past us and we live in poverty. Would you do that?
You will hear from many more First Nation leaders like me, who will tell you in clear terms that our patience has run out. I hope that this time the immigrant people who came to our lands in poverty have more to offer than empty promises.
I recognize clearly that these are strong statements, but I also tell you that in December, at the AFN conference, there will be a protest on the first day by all of the people across Canada on Parliament Hill and there will be a resolution before the assembly on the first day asking for a national railway blockade on Tuesday, June 29. I will be putting that resolution before the AFN. It will come 15 days after your final report comes out.
The Chairman: Thank you, Chief Nelson.
Colleagues, I have been in considerable contact with Chief Nelson at the request of the minister. He has shown understanding and patience once again. Today in the House of Commons, the leader spoke about this being the greatest country in the world.
I believe too, Chief, that the only way this country will be the greatest country in the world is if our First Nations people are allowed to travel the same road as everyone else.
I really thank you for your presentation. I am concerned, as a Canadian, and I think so is this committee. We have established a strong working relationship in this committee. It is a non-partisan relationship. It is a relationship that attempts to resolve some of the injustices that have plagued our First Nations people. You have described it here from a personal perspective, but we know that you are not living in isolation. The problems run right across the country in terms of poverty, health, education and sharing of resources.
I can only say, colleagues, that I asked Chief Nelson to come and be one of the last witnesses. He is the last witness we will be hearing. We need to really know and understand the frustrations. We will try to write them into our report. I, too, hope it does not become a dust collector. It will be concise, precise and to the point, specific to a given area of specific claims. TLEs are included in this. I just hope that we do not disappoint you, chief, because you have been disappointed too many times in the past.
Senator Dyck: I would like to thank Chief Nelson for his very powerful statement. I think you really brought life to the issues involved here, and the statements that you have put forward here are certainly a very dramatic way for people to understand the outcome of this process. Thank you very much for that.
Mr. Nelson: I will also mention that one of the problems we have had, and I have included in the package, is that our Treaty Land Entitlement claim of 1996, took us so long to try to settlement and yet, 10 years later, not one acre of land has been converted to reserve status. We were trying to get the urban reserve in Winnipeg. We had 20.4 acres of land. The Department of Indian Affairs put a stringent, unreachable, environmental assessment on our lands. There was some coal dust four feet under from when they used to have steam engines, and there was a little railway spur there on two acres of land. It ended up that the coal dust is four feet under, and they said we cannot have that. They told us it would take $2 million for us to take that coal dust out. Normally, in the city of Winnipeg, they pave it over. You would die from Mount St. Helen's dust before you would ever die from what was four feet under there. That was the only thing they could do to stop us.
There was a letter sent, and I included it in the package, from Mr. Toews, the Attorney General, to the Minister of Justice, asking Jim Prentice not to convert reserve lands. We have failed so far to get a copy of that letter, even though Minister Toews did send a letter to the Winnipeg Sun. I cannot get it. Why can I not get it? When Minister Toews who is the Crown, can send a letter that relates to Roseau River and our TLE agreement, why can we not get a copy? There is no courtesy of simply sending us a copy of the letter when it impacts our TLE. Those are the things that are frustrating us. Unfortunately, we will have to file a fundamental breach of treaty, because it is the Crown that is now saying that it is not going to convert our lands. Of course, in our TLE settlement, the Minister of Justice has to sign off before any of those lands can be converted.
We are in a bind, and we do not know how to get out of it. The only way for us to do that is to declare a treaty to be fundamentally breached and thereby deny access to Enbridge, to CN to cross our lands, and to look like militant Indians again. I really do not know what else to do. We have filed as many lawsuits as we can. We have gone through the courts. It is unfortunate, but it ends up at that point people will look at us and say, ``Here they are again. Here are the lawless people going again.''
One of the things we are saying to you, and I would like to see happen, is for someone to please do the research. Take a look at even just the federal government surpluses in the last 10 years or so. Take a look at the sale of all of the resources in this country. Do you know that in 2003 the federal government received $141.8 billion from its royalty on the sale of natural resources? That is just the federal government side of it, not the provinces. It was not the profit margins by the resource companies. That federal royalty outpaced even the income tax collected from the taxpayer, but the taxpayer says to us, ``You live on our good graces.'' We are trying to tell them these are our lands and our resources, and we would like to have a share of our own wealth. What is so unusual or radical about that?
Senator Sibbeston: I would like to ask the chief to give us a bit of background on the reserve that he is chief of. You talk about 75 per cent unemployment. Where are you situated, and what do you feel is the reason for such high unemployment?
Mr. Nelson: We actually live in probably the richest area in Canada. Actually, on a per capita basis, in southern Manitoba, there are probably more millionaires than any other place. It is one of the richest agricultural areas in the world, the Red River Basin. However, one things that is critical for economic development is access to getting businesses going.
In the 1930s, Roseau River was one of the most thriving agricultural areas and farming communities in Canada. It was so thriving that after the government had taken away 70 per cent of our reserve, it provided a permit system where we could not get permits to sell. Our farmers could not sell the grain, so it rotted in the fields. The people were farming. They were doing tremendously well. My grandfather was a successful farmer. When he met his grandson, my uncle Tony Nelson, coming from the war in 1944, coming off the train in Winnipeg, he had just sold his grain. My uncle tells the story about how well off this man was. He had $1,000 in each of his pockets, and he had five pockets. He had $5,000 on him in cash. That was roughly like carrying around $70,000 in your pocket now. That is how much he had. They were successful. But when they destroyed the farming communities, they ended up on welfare.
Today, our community is on the verge of being totallyself-sufficient within five years. We will not get the 77 per cent unemployment down if we do notget the lands converted. We will have the urban reserve.
I have a list of projects. I have a $1.5 billion project on alternative energy working with the Chinese and the Saudis. We have a $20 million scrap metal project. This 1903 surrender represents a settlement of between $60 million and $120 million. The ICC will write the decision in March.
We also have a $400 million housing project that we are looking at. We have the provincial nominee program that we are also looking for Chinese investment. We have the urban reserve, tobacco tax rebates and gaming, 60 gaming VLT machines. It is all contingent on being able to get our land converted. If we can get our land converted we will be up and running. We just came from a $6 million accumulated deficit and brought it down to under $1 million in four years.
The Chairman: Senator Sibbeston, there is active economic development going on at Roseau River. I hope to visit your area in the next little while, chief.
Mr. Nelson: Senator St. Germain is going to be opening up a gas station.
The Chairman: A gas station in Headingly. We will come and open yours as well. Have you any gas stations on your place at the moment?
Mr. Nelson: We have 2300 acres of land 30 minutes from Winnipeg that we want converted. We have 75 acres north on Highway 6 that we want one-stops on. We have 20.4 acres of land that we are negotiating for in the city of Winnipeg and we are working with the Seminoles in Florida also in generating dollars for our economic development.
The Chairman: We appreciate your presentation and your presence here and the sincerity you have brought to the committee. I hope from the bottom of my heart, and I am sure each of the senators here who have devoted so much time in most cases to this particular committee, will seek to find recommendations that the government cannot ignore. With government after government, it does not really matter who is in government, it seems our First Nations people are treated the same way and I have great faith in the present Minister of Indian Affairs. I thank you again for exercising patience because I know what you had planned and at the request of the minister you exercised reason and patience and hopefully it will pay off in dividends for your people.
If there is nothing else at this time, colleagues, we will suspend for a couple of minutes and we will go in camera with for a short period of time to start on the drafting of our report.
The committee continued in camera.