Mohawk Council of Akwesasne presentation to the Standing Committee on Aboriginal Affairs and Northern Development on the The Specific Claims Tribunal Act (Bill C30) and the Political Agreement
Grand Chief Tim Thompson(left) with Chief Bill Sunday(right)
Ottawa, Oneratokha / April 14, 2008
Wat’kwanonwera:ton.
Ladies and Gentlemen, Members of the Standing Committee on Aboriginal Affairs and Northern Development, Representatives from First Nations Communities and other presenters…
My name is Tim Thompson. I am the Grand Chief for the Mohawks of Akwesasne, a community of approximately 12,000 Mohawks who reside on ancient aboriginal territory along the St. Lawrence River. Akwesasne has a unique geographical and political location between the countries of Canada and the United States, the provinces of Ontario and Quebec and New York State.
Our community has been involved in several land claims with Canada over many years.
Some of our claims are very large…some are currently being negotiated…some are being litigated…some have been in the process for more than 30 years…some have been rejected…and there will definitely be some Akwesasne claims that will be impacted by this new legislation.
We come to the Standing Committee because we have not been consulted on the new Specific Claims Tribunal Act (Bill C-30)…And to bring our concerns forward on this impending legislation.
Consultation with First Nations
We believe that the first of many shortcomings surrounding this new Bill, is the lack of direct consultation with First Nation Communities. The AFN does not represent the Mohawk Council of Akwesasne. We are a member of the Independent First Nations of Ontario and the Iroquois Caucus…neither of which have had meaningful consultation on this process.
Some very important issues such as “claims above $150 million” or some “Additions To Reserve (ATR) issues” have not yet been resolved. Even though Canada and AFN recognize that there are many unresolved issues with regard to this new legislation, and have proposed that these concerns will be negotiated through the Political Agreement with the AFN….This is not consultation with First Nations.
Without a consultation process, communities like Akwesasne, will have no part in building the legislation that will ultimately affect them. Akwesasne therefore, does not know the future outcome of some very important issues, if in fact we will be consulted, or if the issues will be resolved to our benefit.
At present Canada has aligned itself with the Assembly of First Nations as the main counter point to the negotiations to move Bill C-30 through Parliament. Akwesasne considers this very political approach to "consultation" with First Nations inadequate. For important legislation such as this - that which will impact the relationship of the Crown and First Nations for decades - real and meaningful consultation must be held with all First Nations in Canada.
Our First Recommendation is that:
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A bona fide consultation process occur with the full participation of all First Nations Communities.
Tribunal Capacity
Canadian courts have stressed that negotiation is preferable to litigation to resolve Aboriginal claims. The Specific Claims Tribunal will create a new level of litigation in claims, with many of the disadvantages of the courts.
For example:
The political nature of the claims permits them to be addressed flexibly - the Tribunal, in contrast, would only be able to offer cash.
The political nature of negotiations allows communities to have real control over the outcomes - the Tribunal would give increased authority to lawyers.
In court, if you make a statement of claim and the statement of defence raises new issues, you have a right of reply. With the new Tribunal, you have no right to bring in evidence to rebut the grounds of the rejection of your claim.
It appears to us that the Tribunal has a more limited range of processes, and remedies available to it, than even the Indian Claims Commission did.
Our Second Recommendation is to:
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Revisit the terms of reference, capacity, authority and remedies available to the new Tribunal.
Tribunal Make-up
The present Indian Claims Commission had worked hard to establish a reputation for impartiality. We worry that the new Tribunal will be seen as Canada's attempt to replace an impartial body with one that will be more favourable to the federal government's positions.
One of the most significant issues is the makeup of the Tribunal. Currently Bill C-30 proposes that Canada will appoint Superior Court Judges, of which, only one, will hear any particular claim. We do not believe that decisions on claims should fall to just one Judge.
Additionally, the selection and appointment process for the members of the Tribunal is not reassuring. It is only in the Political Agreement, not the legislation, that consultation with AFN regarding the recommendation of Judges to the Tribunal is proposed.
Depending on the makeup of the Tribunal, it might provide federal claims officials and negotiators with an incentive to reject claims or have negotiations break down, as the Tribunal could be seen as “pro-federal”, rather than impartial.
Our Third Recommendation is that:
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The makeup of the Tribunal should be composed of a variety of disciplines and should include First Nation members.
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The Tribunal should be a three (3) member panel with one being a Superior Court Justice, with the other two members representing other related disciplines appropriate to the circumstances of the Specific Claim, all having an equal voice.
Tribunal Remedies
Bill C-30 will also create a more structured approach to Specific Claims, which will have the effect of providing very little flexibility to the Tribunal to address the unique and complex circumstances which have created the claim in the first place.
The new Act provides for monetary settlement only. Other creative solutions or options which may be more reasonable, productive, practical or restorative, will not be entertained.
Most claims are about land. The fact that the tribunal can only award cash means it would not be able to address many claims in a way that would satisfy the claimants. The fact that the courts can deliver land, at least more often than the federal system, will promote litigation.
Our Fourth Recommendation is that:
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The settlement solutions available to the Tribunal include land, financial and other creative components in a manner that will satisfy the parties.
Injury to Culture
Bill C-30 will completely eliminate the ability of First Nations to bring any discussion or study relating to the social, cultural and spiritual connection to the land as part of the negotiation process to settle a Specific Claim. Bill C-30 clearly makes this a non-negotiable issue.
The Political Agreement states that: “resolving claims is a legal and moral obligation, and recognizing the cultural, spiritual, social and economic significance to a First Nation of recovering or replacing land that was unlawfully taken”.
The words are beautiful, but they fall short of one important component. They do not allow for the discussion or negotiation regarding injuries to culture, that are associated with loss of land. First Nations know the impacts of injury to culture, which have occurred with loss of land. This obvious injury should not be ignored.
Our Fifth Recommendation is that:
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Consultation with First Nations to insure that the Political Agreement provides for the discussion on restorative justice with regard to injury to culture associated with the land.
Large Claims
The new legislation proposes to exclude claims in excess of $150 million. This exclusion is something that AFN proposes to address through the Political Agreement. Meanwhile, its exclusion will allow government officials to coerce First Nations to artificially devalue their claims to fit the current criteria.
With a cap on the size of claim that the Tribunal can address, federal negotiators will be tempted to collapse negotiations on large claims knowing they have nowhere else to go, while there will be pressure on First Nations to accept less than fair value on their claims to bring them under the "cap" if the claim goes to the Tribunal.
The presence of the Tribunal as a process for settling smaller claims will be accentuated as a further excuse for avoiding settling the larger claims.
The large claims represent the greatest benefit for First Nations, and the greatest accumulated debt on the part of the federal government. However, with a limited annual budget, and a fascination with statistics, Canada prefers to resolve the smaller claims. If the Tribunal is not able to address the larger claims, these larger claims will be further deferred, and become even less likely to be settled.
Our Sixth Recommendation is that:
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Consultation with First Nations to insure that the Political Agreement provides for the discussion on claims above $150 million.
Settlement Practices
One major obstacle to settling specific claims is the lack of clarity in Canadian law. Currently, only the courts can clarify the law, but litigation is currently being discouraged. Unless the rules and practices governing the claims process, including those proposed for the Tribunal are clarified and expanded, claims will remain unresolved.
For example Canada offers 80% simple interest and 20% compound interest for breaches of fiduciary obligations. It is not the law, but the federal government, in the absence of clear law, have implemented in practice.
Even though the Political Agreement with AFN promises to address this issue, our confidence in a positive resolution of this issue is not strong.
Our Seventh Recommendation is that:
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Consultation with First Nations occur to insure that the Political Agreement provides for clarity in the rules and practices which are used in the settlement of claims.
Surrender
Bill C-30 also appears to place into legislation the retroactive "surrender" of lands originally taken illegally as a consequence of settling a Specific Claim and receiving compensation. There will be no future options available on this point if this legislation is passed by parliament.
Our Eighth Recommendation is that:
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Consultation with First Nations occur to insure that the Political Agreement provides for discussion on options regarding the surrender component of claims settlement.
In conclusion, I would like to say that the AFN is not a First Nation and does not speak for all First Nation peoples in Canada. Akwesasne wishes to make it abundantly clear that support by the AFN does not translate into acceptance of the new Specific Claims Tribunal Act (Bill C-30), by the First Nations who are affected by this Bill.
It is important that Canada honour its obligation to First Nations communities, to consult with them regarding the legislation which will affect their claims for and their futures.
Niawenkowa, Thank You.
Summary of Recommendations proposed by the Mohawk Council of Akwesasne
1. That bona fide consultation process occur, with the full participation of First Nations Communities.
2. To revisit the terms of reference, capacity, authority and remedies available to the new Tribunal.
3. That the makeup of the Tribunal should be composed of a variety of disciplines and should include First Nation members.
And That the Tribunal should be a three (3) member panel with one being a Superior Court Justice, with the other two members representing other related disciplines appropriate to the circumstances of the Specific Claim, all having an equal voice.
4. That the settlement solutions available to the Tribunal include land, financial and other creative components in a manner that will satisfy the parties.
5. That consultation with First Nations to insure that the Political Agreement provides for the discussion on restorative justice with regard to injury to culture associated with the land.
6. That consultation with First Nations to insure that the Political Agreement provides for the discussion on claims above $150 million.
7. That consultation with First Nations occur to insure that the Political Agreement provides for clarity in the rules and practices which are used in the settlement of claims.
8. That consultation with First Nations occur to insure that the Political Agreement provides for discussion on options regarding the surrender component of claims settlement.
