Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 34 (15 June 1983)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 34 (15 June 1983).
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HOUSE OF COMMONS
Issue No. 34
Wednesday, June 15, 1983
Chairman: Mr. Keith Penner
Minutes of Proceedings and Evidence
of the Special Committee on
The status, development and responsibilities of Band
governments on Indian reserves, as well as the financial
relationships between the Government of Canada and
(See back cover)
First Session of the Thirty-second Parliament, 1980-81-82-83
SPECIAL COMMITTEE ON
Chairman: Mr. Keith Penner
Vice-Chairman: Mr. Stan Schellenberger
Clerk of the Special Committee
MINUTES OF PROCEEDINGS
WEDNESDAY, JUNE 15, 1983
The Special Committee on Indian Self-Government met at 3:53 o’clock p.m., this day, the Chairman, Mr. Penner, presiding.
Members of the Committee present: Messrs. Allmand, Chenier, Manly, Oberle, Penner, Schellenberger and Tousignant
Other Member present: Mr. Skelly.
Ex-officio member present: From the Assembly of First Nations: Ms. Roberta Jamieson.
Liaison members present: From the Native Women’s Association of Canada: Ms. Sandra Isaac. From the Native Council of Canada: Mr. Bill Wilson.
In attendance: From the Research Branch of the Library of Parliament: Mrs. Katharine Dunkley, Research Officer. From the Parliamentary Centre for Foreign Affairs and Foreign Trade: Mr. P.C. Dobell, Policy Co-ordinator.
Witness: From the Teme-Augama Anishnabai: Chief Garry Potts.
The Committee resumed consideration of its Order of Reference dated Wednesday, December 22, 1982. (See Minutes of Proceedings, Wednesday, December 22, 1982, Issue No. 1.)
Chief Potts made a statement and answered questions.
It was agreed,—That the document entitled: “Chronology Summary Of Events Affecting The Land Rights Of The Teme-Augama Anishnabai” tabled by Chief Garry Potts of the Teme-Augama Anishnabai be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “SEND-44”)
It was agreed,—That all materials for information tabled by the Teme-Augama Anishnabai be filed as an exhibit with the Clerk of the Committee. (Exhibit “SS”)
It was agreed,—That the document entitled: “Temagami Anishnabai Membership Record” tabled by Chief Garry Potts of the Teme-Augama Anishnabai be filed as an exhibit with the Clerk of the Committee. (Exhibit “TT”)
It was agreed,—That Mr. Raymond Chenier, M.P., take the Chair of the Committee as Acting Chairman for the meeting to be held on Thursday, June 16, 1983.
At 5:20 o’clock p.m., the Committee adjourned to the call of the Chair.
Clerk of the Committee
(Recorded by Electronic Apparatus)
Wednesday, June 15, 1983
The Chairman: Order, please. The Special Committee on Indian Self-Government is called to order. We have with us today the Teme-Augama Anishnabai Band. Chief Gary Potts is present.
Chief Potts, I would ask if you would introduce your delegation to us. Then perhaps you would indicate the manner in which you would like to proceed this afternoon. There is a presentation that has been distributed to the members. We would like to know, for example, whether you want to read the presentation into the record or just comment on it and then get more quickly into questions. With regard to whatever you want to do, whatever is most helpful from your point of view, we will be obliging.
Chief Gary Potts (Teme-Augama Anishnabai): I will read the presentation into the record and perhaps, after the presentation is finished, there will not be that many questions—maybe.
I would like to point out to the members here that these are Second Chief Rita O’Sullivan, Councillor George Becker, Councillor Morris McKenzie Jr. and Elder Bill Twain.
Firstly, on behalf of the Teme-Augama Anishnabai, I would like to thank the members of the subcommittee for this opportunity to present our rights to self-government for the Teme-Augama Anishnabai to you.
[Visual presentation accompanies following text—Editor]
The maps here—I will explain these first and then I will sit down and we will get into the presentation. This is our tribal motherland of approximately 3,823 square miles. The territory is generally referred to as being 4,000 square miles in area. The northwest portion of it adjoins the aboriginal lands of the Mattagami Anishnabai in northern Ontario. These lands, here, come to the height of land where the waters start to flow north into James Bay.
The northeastern part of our tribal motherland adjoins the Matachewan Anishnabai; the southeastern part adjoins the Temiskaming Anishnabai … we will refer to them as the Sagine Anishnabai—who are situated at the head of the Lake of Notre-Dame-du-Nord, northwestern Quebec; and the southwestern portion of these lands adjoins the Nipissing Anishnabai, who are situated at Lake Nipissing, North Bay.
We have an indenture of accord, which, through oversight, I forgot to bring and file with the committee, which says that the lands—for instance, these lands outlined in red, these lands outlined in turquoise, these lands down here outlined in green and these lands over here outlined in orange—were the
boundaries where our lands stop and their lands start. The indenture of accord was signed agreeing that that is where the aboriginal boundaries were of our each particular tribal motherland that our peoples have occupied.
This map is a map that was done by the Province of Ontario showing the area of land that is covered by the caution that we put on the lands. We put this caution on all unregistered Crown land in the area. Where there are patents the caution does not apply to that land, and in the area that is not patented the land is frozen from further development, although Ontario continues to exercise the timber licences in the area and has gone into new agreements since the caution was put on in 1973. I will be getting into further details on that in the presentation.
This is the creed of our people, nDaki-Menan, which means “our land” in our language, and this land belongs to our people. Some are dead; some are living; most are not yet born. This land is not for sale. On the map that is attached to it we show the 14 family territories, the 14 families’ grounds that traditionally make up the tribal nation of the Teme-Augama Anishnabai.
To point out two places of prominence in it: One is Cebece, which is also known as Maple Mountain . . . In the stories of our older people it is recorded as a place where the spirit goes, and that is where the name Chibagin comes from because in our religion we believe that while the body dies the spirit never dies and the spirit moves on to a new dimension.
I guess that covers it. Are there any questions on the maps at this point in time?
The Chairman: Chief Potts, what is the state of play now with respect to the caution? There is a court case pending?
Chief Potts: The court case was pending with regard to the caution. Judge Gratton in North Bay district court, District of Nipissing, was going to enter into a full investigation as to the nature of the Indian interest in the land in this. The Attorney General lawyers of the Province of Ontario appealed his decision to do that to the Divisional Court of the Supreme Court of Ontario, but the Divisional Court dismissed the appeal on the grounds that Judge Gratton could investigate the nature of the interest in whichever way he decided to.
The hearing was to start on May 15, 1978, but on May 8, 1978 the Attorney General for the Province of Ontario took out a statement of claim, a writ, against us in the Supreme Court of Ontario and went before Judge Gratton on May 15 and asked him to stay his proceedings. Judge Gratton would not agree to stay the proceedings. He adjourned the proceedings to be brought back on by either party with 21 days’ notice.
The Chairman: From the point of view of your band then, you would bring that on if the negotiations do not succeed—is that correct? If they are successful, where would the court case stand then?
Chief Potts: That court case is still in adjournment. We are now before the Supreme Court of Ontario, Justice Steele, in dealing with the writ that the Province of Ontario took out against us. We started the hearings a little over a year ago, that would be April of 1982, and we are now on our second last witness, our third last witness. Our historian, Jim Morrison, is just beginning cross-examination today by the Province of Ontario. He has been giving evidence for a little over four weeks on approximately 3,000 historical documents which relate to property title for Indians in Ontario. So that court case is ongoing at this point in time.
The Chairman: Are there not also negotiations involving the federal negotiator, a Mr. Brunelle? Is that in limbo; is that active?
Chief Potts: Perhaps we had best wait, since that will be clarified in our presentation. We can get into those kinds of questions, if need be, following the presentation.
Mr. Allmand: I was wondering if you could point out on the map where the principal non-Indian communities are, so that I can place them.
Chief Potts: We have a small community here, Gowganda; approximately 80 people live in it. It is the remnants of the silver boom in the area. In 1911 or 1908, there were approximately 8,000 people in this area. And we have Elk Lake, which is a town of about 500 people. Part of it is in our area, on the west shore of the Montreal River, and part of the town is on the outside of the tribal boundary. Then we have Matachewan, which I think also has a population of about 500 and very little of the town is within our boundaries. We have the town of Temagami, which is pretty well the major centre on the northeast part of the lake, and that has approximately 1,200 people in it. So probably 3,000 non-Indian people reside in that area.
Mr. Allmand: How far north of Sudbury or North Bay are you?
Chief Potts: The southern boundary is approximately 35 miles north of North Bay and the western boundary is approximately 30 or 35 miles east of Sudbury.
Mr. Allmand: And you are south of Kirkland Lake.
Chief Potts: South of Kirkland Lake, yes. Here is the area here; Timmins is here and Kirkland Lake is here.
Mr. Allmand: Okay. Thank you very much. Thank you.
Chief Potts: The name of our tribal nation is derived from a prominent lake within the boundaries of our motherland, which means deep water. Anishnabai, means people. nDaki-Menan, which we call our motherland, means our land. Dakeen, means my land. I say this to you to illustrate the fact that the terms Algonquin and Ojibway are European terms and that the descriptive words for land illustrate our sense of land classification.
While it is fortunate this type of forum is available to us, it is unfortunate that we are talking to representatives of colonial immigrants and their descendants who have founded their perceptions of our people on ignorance. We are as human today as our ancestors were thousands of years ago, and as our descendants will be thousands of years from now. While you, the committee members, have a deeper insight into our races of people, the majority of your brothers and sisters do not.
We are here today to illustrate to you that we are the owners of nDaki-Menan* or from the surface of nDaki-Menan to the centre of the earth, also from the surface to the stars, and that we have adapted to the intimidation and pressure of your society to survive as a tribal nation of peoples. This adaptation does not prejudice our sovereignty over ourselves and nDaki- Menan, but it permits us to have a dialogue with you in your language, and it is in your language that you will understand that we believe today—as our ancestors did thousands of years ago—that nDaki-Menan is ours. The Teme-Augama Anishnabai have produced scientific evidence before Justice Steele in the Supreme Court of Ontario that we have occupied nDaki-Menan for 5,000 years. We say that future archaeological finds will move the time period back further. The evidence of tools, arrowheads and spearheads show the same design. Our legend talks of the flood. Archaeologists state that this is in reference to the melting glacier of 10,000 years ago, and Thor Conway, the Ontario government archaeologist states that indigenous peoples were living in sight of the glacier as it melted.
Evidence of continental trade routes, hundreds if not thousands of years old, have been documented by academics such as Mr. Bruce Trigger. Silver from our area has been found in grave sites in the Ohio Valley. The routes of the voyageurs to the west were blazed by the indigenous peoples, hundreds if not thousands of years before the voyageurs came to our lands. The continents of North, South and Central Americas have been occupied by many nations of peoples for thousands of years, just as the continents of Europe, Asia and Africa have been, and continue to be occupied by many different nations to this day.
The Teme-Augama Anishnabai had family territories within the boundaries of our tribal nations who utilized all that our land and waters had to offer: timber for toboggans, snowshoes, canoes and wigwams, etc.; minerals for trading, clays for pipe and pottery, and waterways for food and transportation. The list goes on and has been well documented in evidence before Justice Steele.
Our political body has been the Teme-Augama Anishnabai, represented by a head chief, a second chief and a third person who arranged all the meetings and other political matters to be dealt with. The only restriction on the land use of the Teme-Augama Anishnabai is that we cannot use the land in such a way that deprives our descendants of a base of life from which to grow. nDaki-Menan is the mother of our tribal nation. nDaki-Menan dictates what we can do with it and still protect the rights of our descendants to use nDaki-Menan in the future. In some ways, your Crown is equal to nDaki-Menan as a parallel.
Before the colonists arrived, there had been no challenges to our sovereignty, with the exception of battles with the Iroquois approximately 300 years ago. We defeated them in several battles, some of which are also on record before Justice Steele. In 1877, lumbermen came up to our lands; and at that point in time, our chiefs approached the government agent at Parry Sound, indicating to him that lumbermen were coming onto our lands when we had signed no treaty with any government.
In 1877, the Teme-Augama Anishnabai were still exercising sovereignty over ourselves, as the capture and punishment of one of our peoples were exercised for a crime of terminating another tribal members life. Our self-jurisdiction was also exercised in the termination of the life of one of our members to protect the rest of our community.
In 1887, the government violated the terms of the royal proclamation by extending their legal intimidation to one of our people for manslaughter. He was tried at Pembroke and sentenced to prison for 14 years, where he died in 1894. In 1901, when the forest reserve was created, the forestry officials were constantly threatening, arresting and/or harassing our people. There are many stories of injustice to our people at the hands of the provincial government agents, who exercised their legal terrorism on us without the legislative authority to do so.
Many requests were made to the federal government through their Indian agent for intervention on our behalf, but nothing was done because of the 1894 agreement between the federal government and Ontario, paragraph 6 of which states, in effect, that all future treaties in Ontario will require the concurrence of Ontario. To this day, the Ontario government refuses to acknowledge that they do not have the legislative authority to deal with nDaki-Menan under the Public Lands Act of Ontario.
The Ontario government is in violation of the British North America Act of 1867, Section 109, which states:
All lands, mines, minerals, and royalties belonging to the several Provinces of Canada, Nova Scotia and New Brunswick at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same.
The four western provinces were placed in the same position as the original provinces by the British North America Act of 1930, 21 Geo. V. c 26 (U.K.). Learned courts have determined that the Indian interest. is the other interest to which the provinces are subject.
The 1924 land agreement between the federal government and the Province of Ontario, dated March 24, 1924, acknowledges the fact of the court interpretation of Section 109 in the second whereas, which states in part:
The said territories were by the said Treaties freed, for the ultimate benefit of the Province of Ontario, of the burden of the Indian Rights, and became subject to be administered by the Government of the said Province for the sole benefit thereof
With regards to nDaki-Menan, the Province of Ontario is violating the honour of the Crown by its continuing aggression against the Teme-Augama Anishnabai. The federal Justice department in Ontario, represented by Mr. Hobson and a junior assistant, have on several occasions sided with the two Attorney General lawyers from Ontario in their continuing aggression against us.
The Department of Justice of Canada has done a complete about face from its position on March 10, 1894, as set out by the Hon. W.D. Hogg. Some people might ask: Why would the federal government present the case on behalf of the Teme-Augama Anishnabai to the arbitration board in 1894? I might add here that they lost before the arbitration board. The board agreed with Armelius Irving, counsel for Ontario, that this matter required a treaty for settlement, not an arbitrator’s decision. The federal government was exercising its responsibility dictated by Section 91.(24) of the British North America Act of 1867.
For what set out this section of responsibility we must look to the Royal Proclamation of October 7, 1763 as a base document, and it has been referred to by various scholars as the first British Constitution of North America. The Royal Proclamation of October 7, 1763, is of importance to the Teme-Augama Anishnabai because our warriors fought with Pontiac against the British, and we are in the area of Ontario where the aplication of the Proclamation has never been questioned, although we have and continue to take the position that it applies to the whole of Canada; and is in effect today where no valid treaty has been signed. We also maintain that that it is one of the aboriginal rights referred to in Section 35 of the Constitution Act 1981.
I will now refer to excerpts from Dr. Brian Slattery’s thesis on The Land Rights of Canadian Indigenous Peoples, and also Lieutenant Governor Simcoe’s speech to the western Indians in the Legislature of Upper Canada, March 20, 1845. Lord Egremont, Secretary of State for the Southern Department,
January 1763, to Sir Jeffrey Amherst, Commander-in-Chief in North America:
. . much at heart to conciliate the affection of the Indian nations by every act of strict justice and by affecting them His Royal Protection from any encroachment on the lands they have reserved to to themselves for their hunting grounds and for their own support and habitation.
Lord Egremont, Secretary of State for the Southern Department, to the Board of Trade on May 5, 1763:
Though in order to succeed effectually in this point, it may become necessary to erect some forts in the Indian country with their consent, yet His Majesty’s justice and moderation inclines him to adopt the more eligible method of conciliating the minds of the Indians by the mildness of his government, by protecting their persons and property, and securing to them all the possessions, rights and privileges, they have hitherto enjoyed and are entitled to, most cautiously guarding against any invasion or occupation of their hunting lands, the possession of which is to be acquired by fair purchase only . . .
This important passage indicated that the major tenets of the Indian policy later embodied in the Proclamation had already been adopted by the government at this stage. Namely, they were the general recognition of the Indians’ property rights; the protection and securing of those rights; the prevention of any invasion of their hunting grounds; and the acquisition of Indian lands by means of fair purchase only.
In the leading case of Connolly v. Woolrich (1867), Monk J. considered the effects of the Treaty of Paris and the Proclamation upon the laws obtaining in former French territories outside the colony of Quebec. He held that he saw nothing there regarding:
. . . abolishing or changing the customs of the Indians or the laws of the French settlers, whatever they may have been; nothing which introduced the English common law into these territories. When Connolly went to Athabasca in 1893, he found the Indian usages as they had existed for ages, unchanged by European power or Christian legislation.
I will continue. Our next heading is “The Indigenous Peoples Affected.”
In determining the scope of the provisions in Part IV of the Proclamation, we must first ascertain the identity of the persons affected. The preamble refers to “the several nations or tribes of Indians, with whom we are connected and who live under our protection”. On 11 subsequent occasions, the text speaks of the “said Indians”, in each case referring back to this description and incorporating whatever limits are implicit in it.
Several questions arise:
1) Does the term “Indians” comprehend indigenous Americans generally, including Eskimos or Inuit, or are the latter excluded?
2) Does the description extend to all Indians inhabiting North American territories held by the Crown, or is it confined to certain groups among these?
With respect to 1) and the Eskimo peoples, in modern parlance the word “Indians” is generally taken to refer to indigenous Americans other than Eskimos. But it appears that this restricted usage was not current in the 18th and 19th centuries when the term “Indian” was applied to indigenous American groups generally. Thus, in Reference re Term “Indians”, the Supreme Court of Canada, after an extensive historical review, held unanimously that “Indians”, as used in Section 91.(24) of the British North America Act, 1867, encompassed Eskimos. Significantly, the principal opinion considered and rejected the contention that the phrase “the several nations or tribes of Indians, with whom we are connected, and who live under our protection”, as used in the Proclamation of 1763, did not cover Eskimos.
The latter discussion is obiter, perhaps, but the evidence reviewed in the judgment amply supports the finding. Numerous examples are given, drawn from official documents of the 18th and 19th centuries, where Eskimos are explicitly described as Indians, or where the hybrid expression “Eskimo Indians” occurs. Eighteenth century documents cited include the following: reports of the Lords of Trade to His Majesty of June 8, 1763, and April 16, 1765; proclamations issued by various governors and commanders-in-chief in Newfoundland, dated July 1, 1764, April 8, 1765, April 10, 1772, May 14, 1779, January 30, 1781 and May 15, 1784; a report by Captain Crofton to the Governor of Newfoundland of 1798; and a report by a special committee of the Council to the Governor of Quebec, Nova Scotia and New Brunswick of 1788.
The reference found in the Lords of Trade Report of June 8, 1763 to “the Esquimeaux Indians” is of particular interest because, later in the report, the authors discuss “that territory in North America which . . . is proposed to be left under Your Majesty’s immediate protection, to the Indian tribes for their hunting grounds”, the very proposal subsequently embodied in the Royal Proclamation.
It is also noteworthy that Webster’s American Dictionary of the English Language of 1855 defines the “Eskimaux” as “a nation of Indians inhabiting the northwestern parts of North America”, and certain other 19th-century dictionaries and scholarly works classified Eskimos similarly. Only in the 1913 edition and certain subsequent editions of Webster’s New International Dictionary are Eskimos excepted from the definition of Indians. The restrictive sense of the term thus appears to have developed comparatively recently.
“Connection” and “protection”: the preamble to part IV states that it is just and reasonable:
that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.
The description clearly adverts to Indian groups who inhabit British territories, and excludes those who do not, as the reference to possession of “Parts of our Dominions” indicates. It is less apparent whether all such groups are encompassed, or only some. Two main interpretations are possible. The first holds that the description covers the groups “with whom We are connected” and also those “who live under Our Protection”. Either characteristic suffices. The former phrase envisages perhaps a factual link with British authorities, but the latter extends the coverage to all Indians inhabiting territories over which the Crown asserted sovereignty. Under the second interpretation the description covers only Indians living under the Crown sovereignty who in addition possess some factual connection with the Crown, whether by way of formal alliance or by way of informal links of friendship and trade. Both characteristics are required. Indigenous groups unknown to the Crown or on unfriendly terms with it might be excluded, despite the occupation of British territories.
Grammatically, there is not much to choose between the two interpretations. The manner of expression nevertheless suggests an intention to protect all Indians who in fact possess “such Parts of our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them”, irrespective of their factual ties with British authorities.
This construction is supported by a review of certain subsequent provisions in part IV which refer back to the description of Indians given in the preamble. Paragraph 2 reserves under Crown sovereignty “for the Use of the said Indians” all the lands not comprised within Quebec, the two Floridas, and Rupert’s Land, and lying westward of the Atlantic watershed. Most of this territory was comprised within the cession affecting the Treaty of Paris and was occupied by Indians previously connected with the French, some of whom had, earlier in 1763, risen in arms against the British in Pontiac’s War.
If paragraph 2 covers only Indians connected with the Crown, then either of two results follow: one, the entire territory described there is set aside for the exclusive use of connected Indians, thus depossessing unconnected groups actually living there; or two, the text refers only to lands actually occupied by connected Indians within the area designated, not to those held by unconnected bands.
The first result is improbable. There is no suggestion in the text of the transfer of lands from certain Indian groups to
others. We turn to the second alternative, whereby paragraph 2, while referring to an apparently extensive territory, is interpreted to apply only to limited areas within it, inhabited by Indians connected with the Crown. This construction leads to difficulties in interpretation of paragraph 5, which provides for the arrest of accused persons taking refuge “in the said Territory”; that is, “the Territories reserved as aforesaid for the Use of the said Indians”. If these territories consisted only of lands inhabited by connected Indians, then a criminal fleeing to the vast areas occupied by unconnected bands could not be touched, even though still on British soil.
Other peculiar consequences would flow from a construction limiting the Indians covered to those actually connected with the Crown. Under paragraph 4, while private purchases of land from connected groups would be prohibited, unconnected Indians would be left open to the great frauds and abuses mentioned there. Again, the provision in paragraph 4 declaring the Indian trade open would not apply to many Indian groups within the ceded territories, in whose lands the bulk of the fur trade lay.
Thus the view under which the preamble to Part IV refers only to a restricted category of Indian groups among those actually inhabiting British territories cannot easily be reconciled with the ensuing provisions of part IV, which clearly envisage a broader context.
I will skip page 14 and point out that this one portion of page 19—again in the preamble, where it says “should not be molested or disturbed in the Possession of”; and also the underlining on page 21:
. . . but that if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, the same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Puirpose by the Governor or Commander in Chief of Our Colonies respectively.
That is a quote from the Royal Proclamation.
To capsulize the missing document, it is a statement by Lord Simcoe to the western Indians that the Crown did not intend to settle on any lands not ceded to the Crown, in that the claims against the lands of North America by the British Crown were only against other European nations and not against the tribal nations of North America. I believe it was in June of 1793 that he made that statement to the western Indians, and that statement had been previously related to the western Indians two years earlier by Lord Dorchester in Montreal; and that also is a part of our court record in the documents themselves in the Supreme Court of Ontario before Justice Steele.
From these documents you can see:
(1) That the Crown did not create Indian government tribal nations who have unrestricted, unmolested possession of their lands and themselves;
(2) That the Crown required the consent of the Indians before building forts on Indian lands and also for general settlement purposes;
(3) That the Indians do not have to sell their lands to the Crown unless inclined to;
(4) Created a trust relationship; i.e. the Crown protects the Indian lands from unauthorized settler use;
(5) Created in British common law, land reserves out of each tribal nation’s motherland;
(6) The proclamation set out the basic criteria for the purchase of Indian lands and the fact that they could only be purchased by the Crown. After purchase the said lands moved into the category of Crown lands available for disposal to the subjects of the Crown; i.e. Indian title is fee simple with a restriction on alienation.
(7) Acknowledged that we are not subjects of the Crown, but connected to it as allies.
It was because of the Royal Proclamation that settlement was allowed to proceed in a non-violent manner in Canada. We, as allies of the Crown, have fought in many wars on the side of the Crown, noting that if it were not for the 9,000 Indian warriors allied with the Crown in 1812, the war of 1812 would have ended differently and this country would now be a part of the United States of America.
The Teme-Augama Anishnabai of today state that we have never been conquered, nor have we sold nDaki-Menan to anyone. The Crown remains subject to the seven points set out by the Royal Proclamation of 1763, and the Teme-Augama Anishnabai are not inclined to sell the motherland of our tribal nation to the Crown. We are the only indigenous tribal nation in any part of the colonized world that has successfully frozen approximately 4,000 square miles of land claimed by the Crown. We are not claiming anybody else’s land; we are more human than that. The caution was put on the land under the Ontario land title system which allows challenges to property based on a clouded title or unextinguished interests. This move was necessary to protect the nDaki-Menan from a proposed major development. The history of the subsequent litigation, I believe you have.
The dilemma confronting us at this point in time is awesome. How do we convince an uninformed public that they do not own much of Canada, that it is us, the Indian people, who have bent over backwards to accommodate the settler governments, that their tax dollars paid to some of the Indians is nothing when compared to what they receive in return . . . the use of our lands and our resources? Our ancestors did not intend to take actions which prejudiced our rights to unmolested and unrestricted use of our tribal motherlands.
There are two extremes in the confrontational road that we are on. The settler governments wish to achieve a first in the colonized world. This first is the peace-time genocide of the indigenous peoples of Canada in the following manner: by taking away the right of true unmolested, unrestricted self- government for Indians, as well as the removal of Indian jurisdiction over Indian lands and restricting the right of evolution that the Indian races of Canada have. When you do this to a race of people it is the most sophisticated form of genocide known to man. It is more humane to shoot us than to leave us powerless to run our tribal lands as domestic, dependent nations within Canada.
The second extreme is that deportation offices will be set up on the lands of all tribal nations in Canada where peoples who have immigrated to our lands and their descendants must report for shipment back to the mother country of their origin before the next snowfall. I must say that we are, at this point in time, much closer to accomplishing the former extreme position rather than the latter.
Now let us relate to you what we see as a basis for an enlightened treaty between our races of people. As pointed out, we will not surrender nDaki-Menan. Our descendants, thousands of years from now, have the same right to nDaki-Menan that we do. The federal government requires that a treaty must ensure that the Indian claim can never be brought forward again. I suggest that this can be done without a surrender provision. All the governments of the Crown have to do is live up to their end of the bargain forever. If they do not, then we retain the right to assert our motherland interest. If they do live up to their end of the bargain, they will receive no trouble from us.
The intent of the treaty is simple: the Crown wants to use our lands for settler use. We want to retain forms of jurisdiction that protect our interests. It is we who are making the major concession in a treaty, as we were giving up the right of unmolested, unrestricted use of Daki-Menan.
We propose a true form of indigenous, settler, regional government. This enlightened model would have close to the same powers as the provincial governments set out in Section 92 and other sections of the British North America Act of 1867. This type of government would facilitate the public and political expression of a plurality of different cultural values and ways of life, while also encouraging structural cooperation between all of the distinct groups within nDaki-Menan. It is a model of government that is in the interests of all the residents of the region, for it will gain for us all a greater degree of authority and autonomy in determining the region’s future than presently exists in the current structure of the Ontario political system.
The present towns could retain their status quo with the provincial Government of Ontario if they choose, but the lands outside the towns would be controlled by a joint council, consisting of other town councils, interest groups such as cottagers, full-time residents in non-organized areas. We would sit on this council on the understanding that this council could not overturn any of our treaty rights in nDaki-Menan which we have opened up to settler use. The funding to the Teme-Augama Anishnabai would be in the form of block transfers via the negotiation process with the federal government for the use of nDaki-Menan. The Teme-Augama Anishnabai would retain part of nDaki-Menan where our jurisdiction and right of unmolested, unrestricted self-government would apply.
Thus there would be no need for Indian Affairs offices of any form as our service agreements would be with the appropriate government ministries. The historical trust relationship with the federal Crown would remain, as the provinces have not been constitutionally or legislatively inclined to protect the interests of our peoples.
We have provided our membership record to you this morning and I will quickly elaborate on that.
“Tab A” is a declaration. In accordance with the customary law of the Teme-Augama Anishnabai as to membership and control of land the following are confirmed:
One, that the full council consists of those Teme-Augama Anishnabai inhabiting and claiming the land;
Two, that the control of the land rests with the full council;
Three, that the Teme-Augama Anishnabai are those accepted by the full council as members of the tribe;
Four, that from time to time the executive council, chosen by the full council, shall enumerate the membership of the Teme-Augama Anishnabai and that the full council, as so determined, may make such additions or deletions as appear just;
Five, that the executive council shall manage this land subject to the control of the full council;
Six, that the land may not be disposed of except where the full council indicates an inclination to dispose of it upon the consensus of all.
“Declared at Bear Island, this twentieth day of November, 1981”. It was signed by myself, by Rita. O’Sullivan, Second Chief, and Councillors Morris McKenzie, George Friday and Doug McKenzie. The enumeration of the registered people of the Teme-Augama Anishnabai, who number approximately 200, is on “Tab B”, and also the unregistered listings of Teme-Augama Indians, who number approximately 500, including the children, is exhibit 2 of “Tab B”.
These people have been determined and accepted by the full council, as stated in the declaration by voting at a meeting at Bear Island. This was done after intense examination of genealogy charts that were created and placed before the membership in the year 1976, and had been done with reference to historical records and the memories of the older people as to which families belonged to whom. There are 14 charts and the persons on them who are living at this time are all underlined; some of them are deceased and of course there have been new people born.
“Tab E-1” is the voting list of the people. These people are resident onnDaki-Menan, which they have to be before they can exercise the vote. The voting list is made up of registered Indians and non-registered Indians of the Teme-Augama Anishnabai.
The “Tab F *” consists of the declarations of membership, of which there are proximately 221, and they are the people who are 21 years of age and over. We have people who signed declarations in a different manner because they had got married, —mostly got married—or had become 21 in the interim, from 1976, and these people are listed there.
Then we have the people who signed the declarations but were not on the previous list that were in exhibits 1 and 2 and “Tab B”. The Teme-Augama Anishnabai listed in exhibit 2 have declared non-membership; it is two people. Teme-Augama Anishnabai listed in exhibits 1 and 2 have not signed declarations of membership. Some of them, as you know, do not want to exercise their membership for their own personal reasons. The nDaki-Menan people listed here are not exercising membership because they are, and have been, resident near Gowganda and Beaverhouse Lake, near Kirkland Lake, all of their lives and never resided on nDaki-Menan, but their father did in the late 1800s and because of that, Indian Affairs kept him on the records when in actual fact they never lived there.
The total 700 is pretty well accounted for, this is including their children, but the last pages did not get the signatures. The total is 84 members: 18 listed reason for non-declaration of membership; no replies were received from 66 members to whom we sent mailings at their last known addresses.
Further to our membership record, let me say to you that a resolution was passed approximately three years ago by the Teme-Augama Anishnabai full council stating in essence that the non-Indian male and female spouses of the Teme-Augama Anishnabai could sit on education and socio-economic committees as well as community committees, but could not vote in any matters regarding the land issues or run for a position on the executive council of the full council.
With regard to the detailed model of government forum we spoke of, it is with regret that we cannot provide you with an implementation model at this point in time as our preparations
for treaty have been, and continue to be, seriously hampered by lack of financial resources.
Two years ago we received 10% of our research and preparation request. Last year approximately 30%, and this year no decision has yet been made on our budget request. We were told by the Office of Native Claims that the Department of Justice has classed our defence struggle as a specific claim rather than a comprehensive claim, even though the Minister of Indian Affairs has stated that there is no treaty signed by the Teme-Augama Anishnabai. The Ontario government position paper was never ratified by the Cabinet, and replaced by a letter from Alan Pope March 31, 1982, appendix 1. We met in Toronto on April 7, 1982, and pointed out that we are always open to negotiations.
The Ontario government moved on April 8, 1982, the day after, to seek adjournment of the trial before Justice Steele, who denied their request. The province then wanted us to lift the caution. We refused. Negotiations floundered and ceased when Ontario charged two of our non-registered members with netting fish. Bilateral options for negotiations with the federal government are being assessed, dependent on availability of funds.
It was clear to us that Ontario was bringing that motion forward at the request of the Attorney General, or the position of wanting to negotiate, on the pretext of hoping to stop the trial that was in progress before Justice Steele.
The Government of Ontario continues to show bad faith and act in a high-handed manner by now allowing the implementation of a local planning board for Lake Temagami and surrounding area. That is set out in Appendix No. 2. Our patience is being taxed by these continuing aggressions against us by Ontario, now supported unofficially in the Supreme Court of Ontario by the Department of Justice.
I would recommend that this committee purchase the trial transcripts from the Supreme Court of Ontario to see for yourselves the Justice department’s comments, as well as the evidence on aboriginal rights before Justice Steele, as well as copies of the legal arguments when filed in late September or October.
You must realize that you are dealing with the very fabric that this nation was built on, and that is the consent and trust between indigenous peoples and the settlers who came to these lands.
I believe that the time constraints placed on this committee are too limited. To my knowledge, the Inuit communities of the Arctic have not been visited. That is a part of Canada also.
Your recommendations will have a profound effect on Canada for thousands of years to come. You are dealing with humanity. There is no other continent for your races of people to immigrate to, although the Americans are now seeking other worlds. You now must live with the fact that that colonial attitude of conquering and subjugating the frontier must be radically altered.
Things you do to the lands today will affect your descendants for thousands of years to come. Acid rain is an example. Your descendants, as well as ours, must have the right to human evolution. You should not try to institutionalize humanity so that a revolution is the only way for our descendants to rid themselves of oppression.
Your peaceful settlement of this country has been, for the most part, supported by the consent of our peoples. This right of consent we must retain in the Constitution or else turn the governing of this country back to its rightful owners.
Finally, I must say that Canada has within its grasp to be the first colonized country in the world to develop a society which has secured the rights of its colonial settlers and indigenous peoples in a distinct but supportive manner for thousands of years to come.
Canada would not only be a country held together by a set of railroad tracks from the Atlantic to the Pacific Ocean, but also held together by two distinct societies, the indigenous nations and the settler nations, who have placed humanity, the rights of our descendants and the protection of this land called Canada above subjugation and institutionalization. A country which does this will never fall as long as the sun shines, the rivers flow, and the green grass grows.
On behalf of the Teme-Augama Anishnabai, thank you.
This is respectfully submitted by Chief Gary Potts of the Teme-Augama Anishnabai.
The Chairman: Thank you, Chief Potts.
Are you ready now for some questions from members of the committee?
Chief Potts: Yes, I am.
The Chairman: All right.
Roberta, are you ready to start the questioning?
Ms Jamieson: Sure.
The Chairman: All right. Roberta Jamieson.
Ms Jamieson: Thank you, Mr. Chairman.
I would like to thank the Teme-Augama Anishnabai for appearing before this committee.
The first thing I would like to do, Mr. Chairman, if I may, is make sure we have all the material on the record in some fashion or other. We had circulated a number of documents to us yesterday or the day before. The covering page says “List of Materials Enclosed for the Information of the Members of the Subcommittee on Indian Self-Government”. I would like to suggest that the first four pages, which really are a chronologi-
cal summary of events, be appended and that the three pages dealing with the Hon. W.D. Hogg be appended and that the rest be listed as an exhibit.
The Chairman: All right. Have members followed that, that the chronology, which is four pages, be appended? Is that correct?
Ms Jamieson: Yes, that is correct.
The Chairman: And would you . . . ?
Ms Jamieson: I am trying to find the portion dealing with Hogg, Then, let us just append the four pages and list the remainder as an exhibit. That will cover the rest of it. As well, the membership record should be listed as an exhibit.
The Chairman: Okay. You have heard the request from Roberta Jamieson. Is that agreed?
Some hon. Members: Agreed.
The Chairman: Okay. It is so ordered.
Ms Jamieson: Thank you.
The Chairman: All right.
Ms Jamieson: First, I wanted to start off by asking this: You make the point about the responsibility that is on Canada squarely now to ensure a better relationship between first nations and the Canadian government in the future, and that they have a prime opportunity. You also alluded in your submission to the dilemma you are put into by trying to convince the people who live around you that, in fact, you are the rightful owners of the land.
Could you speak to the problems you have had or how you have overcome the problems with public education and in dealing with the communities, the 3,000 people who live within the area that is under caution?
Chief Potts: We have not approached them directly at this point in time. We have met with the council and the Town of Temagami, and I have talked directly to the reeve of the Town of Elk Lake. We have no contact with the council in Matachewan, and Gowganda is an unorganized municipality with no council at all.
The information these people have has pretty well been received through the news media, although at the request of the Progressive Conservative Party of Timiskaming, we did have a public information session in Temagami approximately two years ago at which we stated the concept of regional self- government to them at that point in time. We have requested to meet with their committee on establishing the new control area around Lake Temagami and the adjoining lakes. That request was never followed up by the chairman of that particular committee, and no meeting has taken place on it. We wanted to point out to them what our concerns were with regard to their instituting and implementing, through the Ontario Municipal Act, a large area of control like that, of which we are right in the centre. That would be almost gone from a negotiated treaty in the future.
What we find is that the local people were very, very resentful against us in the beginning for putting the caution on the 4,000 square miles of land; and what we have found subsequently, in approximately the last four years, is that they are accepting the fact that we have a major interest in the area.
The concern they are now feeling and expressing is not towards us, generally, we feel now—we have good relationships with most of them, with pretty well all the people in the towns—but towards the Government of Ontario for not instituting negotiations properly, for not settling this matter in the first years of the caution. They find politics are being played with us at their expense; and since the riding concerned here is only one riding—one member to the Government of Ontario—they do not have any political leverage.
Mr. Oberle: Which riding is that?
Chief Potts: It is Timiskaming riding. That is the riding represented at this point in time by Mr. Ed Halfrock.
Ms Jamieson: Okay. Thank you.
I wonder if I could ask this. On page 27 of your brief, you indicate . . .
Chief Potts: MacDougall is the federal representative. Ms Jamieson: Who is it? MacDougall.
Our patience is being taxed by these continuing aggressions against us by Ontario, now supported unofficially in the Supreme Court of Ontario by the Department of Justice.
Now, you recommend that the committee purchase the trial transcripts from the Supreme Court of Ontario. I think we should look at that, but I wonder if you would expand on just what you mean when you say that continuing aggression by Ontario is supported unofficially in the Supreme Court by the Department of Justice.
Chief Potts: Okay. When this trial first started, because of the constitutional issues before the court, it was requested that the federal government be represented at these hearings. They agreed and they were represented by Mr. Hobson from the Justice department in Ontario. Now, they came in in the beginning as the good guys, the nice guys. They sat behind our lawyer and talked to our lawyer. They were not going to have anything to do with the province.
When we submitted our evidence, they were asked to sit behind the provincial government lawyers by our lawyer, because he needed a table for all the documentation. He also did not want to have these two lawyers from the Justice department sitting behind him. As our evidence was being introduced, the Justice department lawyers were in conversation with the provincial lawyers, and this was even during the cross-examination period. On occasion they informed the Attorney General’s lawyers of positions that they perhaps were
not enlightened on. They were not as enlightened as the federal government Justice department lawyers, because the Ontario government lawyers are not too competent when it comes to dealing with historical matters concerning the Indian people.
I believe it was approximately a month ago or a month and a half ago that they made a statement most definitely opposing what our lawyer was doing in representing our concerns before Justice Steele. They also sided with the Ontario government in objecting to the documents’ being filed with the Supreme Court of Ontario before Justice Steele. So they are clearly in the camp of the Ontario government.
Ms Jamieson: They have intervened then, have they? Formally.
Chief Potts: They have not intervened formally. Ms Jamieson: They have not.
Chief Potts: Justice Steele is asking them for opinions, and the times when they are not even asked, they are giving opinions.
Ms Jamieson: So they have no formal status in the court room?
Chief Potts: Other than being observers at this point in time, no. They said that they would speak to the court on matters of constitutional importance.
Ms Jamieson: Are they financially supporting the Teme-Augama Anishnabai in the litigation?
Chief Potts: The Teme-Augama Anishnabai are not supported by anyone financially. The suport has come from the Anglican Church, and by private donations to the Teme-Augama Anishnabai. The federal government also wanted us to—before they would proceed or consider negotiations to fund us in preparation—drop our court case. This was a position by the Office of Native Claims from 1974 until approximately 1978 or 1979. And when it became clear to them that we were proceeding with the court case, despite their refusing us any type of funding, they then started to allow or talk about funding for preparation for negotiations in the future.
It has been difficult on our staff, on the people to be going through this procedure. They are hearing all the nice political statements being made by the minister and the federal government as to what they are doing on behalf of the Indian people in this country. They are not talking about the other side of it, what in reality they are actually doing to tribes such as ourss who are not bending to their financial prostitution.
Ms Jamieson: What role do you think the federal government should be playing in either the litigation or the negotiation that they are not playing at the moment?
Chief Potts: The federal government, as the trustee for the indigenous nations in this country, should at least be ensuring that the Teme-Augama Anishnabai have the proper funding base from which to defend themselves against the Ontario government in Ontario. The federal government should not be siding with the Ontario government against us. We feel that is
most definitely against the honour of the Crown and it is bringing dishonour to anything like subcommittees, constitutional hearings that arc going to be taking place in the future. They want to limit severely the options that are open to us. They want to limit the options that are open to us to institutions and environments that they control completely.
Ms Jamieson: Okay. I am going to leave that for the moment, Mr. Chairman, because other members want to question in that area.
I would like to ask a couple of questions about the form of government you are moving towards; what you call the Indigenous Settler Regional Government. You have indicated the funding should be via block grants from the federal government, or block transfer payments; that you have no need for the Department of Indian Affairs. Would you tell me what your relationship would be with the provincial government, if any?
Chief Potts: We would have no relationship with the provincial government. We would be directly under the legislative, or related to the legislative, authority of the federal government; much as the provincial government is now.
Ms Jamieson: What about in areas of development? For example, resource development: would you be interested in that yourselves, and would you make arrangements, mutually acceptable agreements, with the province if you thought it was in your interest, and with the federal government? Or in areas, for example, like services, would you consider, once you receive the transfer payments, purchasing services you felt you did not want to provide?
Chief Potts: The resource development of our areas would be negotiated with mining companies or various resource companies that wanted to have access to the area. As I point out, we are in a difficult position to explain in detail how that would be implemented, because we have not received the funding that has been required for us to develop these proposals comprehensively.
The services—again we point out that they will be negotiated in the treaty, and they relate directly to the fact that the governments are being allowed the use of our lands. That would be the justification for service agreements that would be included in these block transfer payments.
As for resources, again, we have not done enough studies really to decide how that will be done; but we feel initially that since they are our lands, we should be the ones to decide which resources are going to be developed and how we are going to be involved in those.
Ms Jamieson: Thank you.
Thank you, Mr. Chairman. There are so many members here today I think I will stop there and give everyone an opportunity.
The Chairman: Thank you very much, Roberta. Mr. Oberle.
Mr. Oberle: Yes, Mr. Chairman, I just have a couple of questions.
As you know, Chief Potts, the main preoccupation of this committee is of course to endeavour to attempt to try to establish some kind of a model of self-government that would be flexible enough to accommodate the different aspirations of different Indian nations throughout the country. So I am making particular reference to your page 26—Ms Jamieson already touched on it—because it is the only page where you deal with a proposed government model. From what I understand, you are proposing a sort of joint regional council. You would leave the present municipal structures in place and let them come under the jurisdiction of the Municipal Act of the Province of Ontario.
Chief Potts: If they so choose. We will be talking to them, and the option is also for them to come out of the municipal part of Ontario and be a part of the regional government of nDaki-Menan.
Mr. Oberle: Okay. Now, could you tell me just what kind of powers and jurisdictions you would wish this regional government to have?
Chief Potts: The powers and jurisdictions would be as set out in I think it is Section 92 of the British North America Act and other sections of the British North America Act, much the same as provincial government powers.
Mr. Oberle: So you would own the land and the resources . . . your funds for planning, education, culture, and whatever.
Chief Potts: Right. We already own the land, and what we want to do is ensure that the settlers who are also on the land, and who believed in good faith that the Ontario government owned that land and had the right to sell it to them, have a say in what has happened to the land and the resource allocations on the land and the uses that are made of the land.
Mr. Oberle: What about law, judicial powers?
Chief Potts: The judicial areas of the regional government would be tied into the court systems, much like the provincial courts are tied into the federal systems. The only qualification on that is that judicial jurisdiction within the distinct community lands of the Teme-Augama Anishnabai would be subject only to ourselves, to our own jurisdiction; there would be no court to come in and impose their jurisdiction on us, and we could not impose our jurisdiction on another body outside our lands.
Mr. Oberle: In the general regional area, would you use the Ontario civil court system?
Chief Potts: Again, I am at a disadvantage, because of our lack of preparation because of the lack of funding. But, yes, that is an option that we are looking at. We are also looking at the federal court system which is in place and assessing if that is a more enlightened way to approach it.
Mr. Oberle: You say that you want to establish an unmolested, unrestricted self-government model. Provincial governments are not unrestricted or unmolested. You know,
when you hear the provincial premiers, they are constantly bickering about federal strings attached to everything they do.
Chief Potts: Right.
Mr. Oberle: You would be prepared to accept those kinds…
Chief Potts: Yes. The regional government that I speak of for the whole area, including the towns and that, town representatives and all representatives from the other user groups, would be subject to that type of jurisdiction; but the jurisdiction that I am talking about, unmolested, unrestricted, would be our community lands, the particular community lands that the Teme-Augama Anishnabai would retain for themeselves.
Mr. Oberle: So the new Charter of Rights or the new Constitution, which is the basis for these molestations imposed on individual citizens and other governments in the country, would not apply to you?
Chief Potts: They would apply to the area of land that is jointly run, but the area of land that is our own community would be subject only to the terms set out in the treaty. Now, if the treaty negotiated in particular parts of the Constitution that were referred to there, or that we are recognized in the ultimate sovereignty of Canada—as long as Canada recognizes that we are a domestic dependent nation within Canada—and that guidelines are set out, we have no problems with that. There is room there to be flexible.
Mr. Oberle: Yes. In other words, the Constitution as we now have it, as it applies to certain political rights, certain individual rights, would not apply in those areas and you would have your own constitution.
Chief Potts: That is correct.
Mr. Oberle: All right. The trust relationship with the Crown or the federal government would remain. That is such a crucial factor for us. We are having a terrible time coming to grips with that.
If you tell me that once you have re-assumed control of your lands and are in full control of your resources, you have made accommodation in the Constitution to live unrestricted and unmolestod on those lands, what kind of trust responsibility do you expect the federal government to exercise after that?
Chief Potts: To prevent the Ontario Legislature from exercising any jurisdiction over said lands and, if Ontario were to develop an army at some point in the future, we would want the federal army to keep out the provincial government army.
Mr. Oberle: Okay, so the trust responsibility has to do with the dependent-nation status?
Chief Potts: Yes.
Mr. Oberle: You would be dependent on Ottawa to defend you if you are in any way . . .
Chief Potts: Threatened by the United States, Russia, or Ontario.
Mr. Oberle: Or Ontario. But apart from that settlement you are negotiating and which hopefully will be achieved, would you look at that settlement as being final? In other words, once you are in complete control, would that be the only trust responsibility you would impose on the federal government— that is of course, apart from the other arrangements which are part of confederation anyway, meaning the transfers, and so on?
Chief Potts: Yes. I pointed out there our problems with the surrender provision. We cannot accept that as a basis for negotiation. We cannot accept that and never will accept that as a part of a treaty. The point is that additional trust responsibility also comes in; that the Ontario government or the federal government in their jurisdictions and powers to sign that treaty have to follow the terms of that treaty forever.
Mr. Oberle: Yes.
Chief Potts: And if they do not, we want the option, and for our descendants 500 years, 1000 years, from now to have the right to that option. If governments of those days should impose themselves on our peoples, they should be able to take the matter again before whatever jurisdiction would be available to assert our continuing rights in those particular lands and as our ancestors had thousands of years ago.
Mr. Oberle: I would like you to point out a specific or a practical example. Well, let me point out one to you. Part of the minister’s trust responsibility, of course, is to assure us that Indian lands are not alienated for any use which is not beneficial to Indian people; that your assets are maintained in perpetuity at a constant value or should be enhanced. That is his trust responsibility under the Indian Act.
What if he turns all the assets over to you, and you decide that, maybe . . . well, you could even have a bad government at some time and you sell some land, you know; you alienate some land or make some foolish decision? It is entirely possible. I do not know any foolish Indians; there are a lot of foolish white men but, maybe . . . who knows?
Ms Jamieson: Hear, hear!
Mr. Oberle: Then do you want your great-grandchildren to come back to the minister and say, Hey, somebody alienated my lands; you had a trust responsibility; and even though he had no control whatever over it, it is said to be all in “your” control.
Chief Potts: You see, the point is still being missed. We are not surrendering our lands. We are not selling our lands.
Mr. Oberle: I realize that.
Chief Potts: What we are doing is. . . parts of those lands will come under the joint control of the settlers, settler governments, and ourselves. Our interests will still be underlying in there. Parts of our lands will be gifts to ourselves alone. I have pointed out that scientific evidence has shown that our
particular tribe has been on those those specific lands for over 5,000 years. We say we have been there for 10,000. It can even be said we were there before the ice age. We came back after the ice left. The point of the matter is that we are not going to sell our land.
Mr. Oberle: I suppose you would write that into your own constitution?
Chief Potts: It will be in the constitution and the treaty negotiations will all point towards those types of facts.
Mr. Oberle: You see, I am just painting a hypothetical picture.
Suppose the Japanese were to come over and make you a very attractive offer to build some great futuristic earth station from which they wished to commute to Venus and Mars and the moon, but they would not do it unless you sold them the land; but your people get a free ride on this spaceship. And suppose you have a council that says, hey, that is a good deal; we will sell them the land. Can your great-grandchildren . . . it is just a hypothetical question. Do you expect your great- grandchildren then to come back to the minister in Ottawa and say, Hey, this was a bad deal, this spaceship blew up and now we do not have the land any more?
Chief Potts: You do not understand.
Mr. Oberle: I am sure you would not sell the land.
Chief Potts: The Teme-Augama Anishnabai have fought so long and hard and patiently to be here today . .. This is all being recorded, and this will be taught to our children, and it will be taught to them that their descendants 500, 1,000 years from now—again, as pointed out, “as long as the sun shines, the river flows, and the green grass grows” . . . that that land is their land; and that the only restriction we have on our land uses is that we cannot do anything which prejudices the right of our descendants to use those same lands. That has been a historical restriction on our people for thousands of years, and it will remain in place for thousands of years to come.
Mr. Oberle: I will not ask any more questions. I understand. I am painting a hypothetical question. Members of the committee know that the land is really your soul, and I know you will not sell your soul. But the white men we will have to sell the ideas that we write into this report to will be asking all those kinds of silly questions.
Chief Potts: That is what we are trying to do: we are trying to humanize the white man in this country.
Mr. Oberle: You are doing a good job. The Chairman: Thank you, Mr. Oberle. Jim Manly.
Mr. Manly: Thank you, Mr. Chairman; and I would like to thank Chief Potts and the members from the Teme-Augama nation.
I found it rather difficult to hear all these references to the Ice Age on a day like today, but apart from that I found your brief very interesting.
It seems that there is almost a bad example of federal- provincial co-operation, perhaps unspoken co-operation—but there seems to be an act in tandem between the Ontario government and the federal government. On the one hand you are having great difficulty getting funding for your negotiations from the federal government, and on the other hand the Ontario government is taking actions which seem to be fairly clearly designed to be provocative, in terms of setting up the local planning council, arresting two people for netting fish. I would be interested in knowing whether that was a new procedure or whether these non-registered people had the right to net fish before. I wonder if you could give the committee some idea of why you think the negotiations broke down and what you think is the best way to settle the issues: through litigation or through negotiation.
Chief Potts: The first point is that we had a verbal agreement in April of 1981 that the people on Bear Island, registered and non-registered people, would not be bothered in the netting of fish for consumption purposes. James Auld was the Minister of Natural Resources, I believe, at that time.
That policy was changed by Pope, and it was Pope himself who gave the orders to go ahead and charge the two people who were arrested.
Mr. Manly: So that seems to be deliberately provocative.
Chief Potts: Yes. They held back in the beginning to give the go-ahead to the town council to go ahead and establish this broad plan and control area, and Pope has now given them the mandate to go ahead. They withdrew the Ministry of Natural Resources objections, based on the fact that negotiations were going to be going on with the Teme-Augama Anishnabai.
The negotiations themselves, as I pointed out, never really materialized into a meaningful dialogue. The provincial government appeared to be using it as a strategy weapon to, first, stop the court case and, second, make it appear to other pressure groups that they were taking meaningful steps towards a settlement.
We found that that was not the case. First, they wanted to stop the court case and, second, they wanted to get the caution off the land, and before there were any agreements… The Cabinet had not agreed with their negotiating position—that is in your kits—when we had asked them to. Ontario’s position in the kits was replaced by a personal letter from Pope with seven points set out in it.
The direction towards meaningful negotiations, we feel, will not occur. It was related to me by a minister of the Ontario government that the policy was that they would let us go through the court systems and in five years or so pass legislation to wipe out any type of interest that we had established through the court systems. That was their long-term plan.
They were not going to enter into any negotiated settlement with us.
Mr. Manly: I am not a lawyer and I am not sure that I am fully aware of all the legal implications, but it would seem to me that it would be completely beyond the jurisdiction of the Ontario government to pass that kind of legislation.
Chief Potts: Nothing is beyond the jurisdiction of the Ontario government and the influence that they have in Ottawa and other establishments in this country. They have been in power for over 40 years; they are the English establishment in the country; and they basically control the country. There is no question in my mind that they are going to use this constitutional conference at some point to neutralize the effects of the judgment that would be made in our case in favour of aboriginal rights.
I have pointed out to them—and I have said this publicly and it is on record—that they are the most sophisticated racists in Canada. There is no one who even comes close to them. Maybe Bennett in British Columbia will take some lessons from them. I understand he had the Ontario government team out there helping him in his election this last time around.
So it is a movement that is going, and I cannot see them ever coming to a reasonable position on this while their main objective is to terminate the Indian title to the land and not live with it and not accept it.
I pointed out that the railroad tracks of Canada have tied Canada together in the first place from the Atlantic Ocean to the Pacific Ocean. I will use an analogy there. One track is the indigenous races and the other track next to it is the settler races that have come to our country. We are saying in our position, basically, that the indigenous races should remain distinct, and the only thing that ties us together and supports our races in this country would be, say, the ties that are holding up those tracks across this country, and every once in a while those ties have to be changed—they are the policies of the government—so that humanity can evolve as it should instead of being restricted.
The Ontario government wants to wipe out the one track, and they want that track. They want the whole shebang. That is unacceptable to us, and until they accept the fact that we have to have jurisdiction—not just welfare payments, not just service payments, agreements, this type of thing. . . We have to have the jurisdiction over our lands and portions of our lands if we are to maintain ourselves as a healthy race of people, a progressive race of people and a race of people that remains allied with the Crown and adds to this country a depth that it would not otherwise have if it terminated all our rights of jurisdiction and rights of evolution that we have as a race of people in this country.
Mr. Manly: Just one final short question for clarification. Would the arrest of the two people for fishing violations have
anything to do with the recently proclaimed fishing agreement, or is it quite extraneous to that?
Chief Potts: We wrote letters, prior to that, pointing out that we were not party to the fishing agreements because the Ontario government and the federal government did not have jurisdiction over us and our lands. We pointed out that the federal government does not obtain jurisdiction over our lands; we have the right of unmolested, unrestricted use of our lands until there is a treaty signed with the federal government. Then the areas of jurisdiction are spelled out in that treaty. As as to why charges took place at that particular point in time, I have no idea.
Mr. Manly: Thank you very much. Thank you, Mr. Chairman.
The Chairman: Thank you very much.
As members know, the bells are now ringing, calling us back to the House for divisions. So on behalf of the committee, let me thank Chief Gary Potts for an excellent presentation and for all of the supporting documentation. You have been very helpful to the committee, very precise and definite in your responses. We want you to know that your testimony today is of great benefit to the task that has been assigned to us by Parliament.
Chief Potts: Thank you very much.
The Chairman: Before members leave, I would like to deal with two items of business. As members know, the Sechelt Indian Band had requested to appear. They are in Ottawa. However, they know the problem we are facing, because we must now leave the committee room. Our clerk has been in communication with them, and if they are unable to appear, as seems to be the problem, in a matter of several weeks they would like to submit a letter stating their final position, and they would like that letter of four or five pages to be appended to our proceedings. I agreed that I would take that up before the committee. Is that acceptable?
Some hon. Members: Agreed.
Mr. Manly: That is acceptable, Mr. Chairman, but is there any possibility that we would be able to hear the Sechelt people briefly tomorrow?
The Chairman: That was my offer, and the clerk took that to them, but they have other commitments that prevent them from doing that.
Mr. Manly: Thank you.
The Chairman: So this is sort of the fall-back position, but it is acceptable to the Sechelt Band; they are quite happy to do this. I guess we are the losers because we did want to ask some more questions based on their testimony. It is regrettable that we cannot.
Mr. Skelly: Mr. Chairman, just before we move off that particular topic, as the member of Parliament for the area, and an individual who has been interested in their proposal for some period of time, I wonder if it might be possible to submit to the committee some observations which I had on that
particular piece of legislation and the relevance for, I think, other bands in the area. Would that be possible?
The Chairman: Your observations on their testimony?
Mr. Skelly: Yes, on the testimony and on the general process as well.
The Chairman: That would be more than acceptable. We would be delighted to have that, and if you will send it to the clerk we will be sure it is circulated to all members of the committee.
Mr. Skelly: Excellent. Thank you very much.
The Chairman: Thank you.
Ms Jamieson: Mr. Chairman, it is regrettable that we will not be able to continue the questioning of the Teme-Augama Anishnabai people. I would like to thank them for coming. Again, if anything has been raised in the questioning to which you want to respond further at a later stage, please do so in writing because we are quite open to receiving written submissions right up until the end of June… if something occurs to you, or if there is something more you wanted to bring to the committee. In my view, most of our valuable testimony comes out in the question-and-answer period, and it is unfortunate that we have had to cut that short. But please submit whatever you like in writing. That is all, Mr. Chairman.
The Chairman: Thank you very much, Roberta.
The second item of business. Tomorrow morning at 9.30 the Northern Manitoba Tribal Council will be appearing. Both myself and Mr. Schellenberger are committed at that time. Mr. Chenier, with the consent of the committee, will act as chairman. I would like to put that to you. Is that agreed?
Some hon. Members: Agreed.
Mr. Chenier: Roberta said no.
Ms Jamieson: As long as he limits his questions, we will let him chair.
The Chairman: With that unanimity and meeting of minds, Mr. Chenier will chair the meeting at 9.30 tomorrow morning. Everybody should be here promptly. Mr. Chenier runs a very tight ship.
Mr. Chenier: Ms Jamieson will have a very short period of questioning tomorrow.
The Chairman: The meeting is adjourned until 9.30 tomorrow morning.
CHRONOLOGY SUMMARY OF EVENTS AFFECTING THE LAND RIGHTS OF THE TEME-AUGAMA ANISHNABAI
1620. A.D. French interpreter and fur trader Jean Nicollet winters on Lake Nipissing, twelve years after the founding of Quebec. Among the groups he encouters are the Teme-augama Anishnabai.
1760. The English have conquered New France. Formal Capitulation of French army at Montreal states that the Indian allies of the King of France shall not be disturbed in the lands they occupy for having taken up arms against the English. Among these allies are the Teme-augama Anishnabai.
1763. October 7th. King George III of England issues a Royal Proclamation. Because of “Great Frauds and Abuses” committed by European settlers, these settlers are warned to get off Indian lands. Native tribes are confirmed as owners of all lands not already sold or surrendered by them to the Crown. If at any future date, these tribes are inclined to part with any lands, they are to be bought in the King’s name only, at a public meeting with the Chiefs and principal men of the tribes in question. Ndaki-menan is Indian land.
The Royal Proclamation has never been repealed. It still has the force of a Statute in Canada.
1774. The lands of the Teme-augama Anishnabai fall within the boundaries of the enlarged Province of Quebec. But, not being sold to the King, they remain Indian lands. After the American Revolution (1783), the King offers to buy lands on the north shores of Lakes Ontario and Erie from the resident Indian nations so that loyalist refugees from the United States of American can settle. These offers are accepted, and sales take place.
1791. The Province of Upper Canada is created out of the western portion of the Province of Quebec. Its formal boundaries include Ndaki-menan. But the Teme-augama Anishnabai do not sell. Several tribes in what is now southern Ontario, however, sell their lands to the Crown.
1850. September 9th. Minerals have been discovered on the north shore of Lake Huron. The Government of the Province of Canada offers to buy the lands in question from the local tribes. A Council takes place at Sault Ste. Marie between the Chiefs and Principal men of the Indian people and William B. Robinson, the Queen’s representative. By the “Robinson-
Huron” Treaty, the Queen acquires full title to the northern and eastern shores of Lake Huron, plus a considerable distance inland.
The eastern boundary of the Treaty is not defined. If it could be made to apply to Ndaki-menan territorially it would not effect a surrender since, although the Teme-augama Anishnabai were known to the Government, before 1850, as a distinct tribe, their Chief was not invited to the Treaty Council. Not being invited, and not being present, the treaty was never signed by the Teme-augama Anishnabai.
1867. Confederation. The new “federal” Government is given responsibility, under the British North American Act, for “Indians and lands reserved for the Indians”. Although Ndaki-menan falls within the boundaries of the new Province of Ontario, it has never been sold or surrendered to the Crown, and therefore remains land “reserved for the Indian’s.”
1879. Lumbermen, licensed by the Ontario Government to cut on Lake Temiskaming, arrive on Temagami Lake exploring for timber. Chief Tonene of the Teme-augama Anishnabai immediately visits the federal Indian Agent in Parry Sound, protesting that white men are interfering with Indian lands that have never been surrendered by Treaty.
1883. The Federal Government acknowledges that the Teme-augama Anishnabai did not take part in the Robinson-Huron Treaty. Some of the Teme-augama Anishnabai (those of Native ancestry in the male, but not female, line) are identified by the federal Government as the “Temagami Indian Band.” Although no formal sale or surrender of Ndaki-menan takes place, a small (100 square miles) tract at the south end of Lake Temagami is surveyed in 1885 by the Federal Government as a “Reserve” for the “Temagami Band of Indians”.
1885 to 1978. The Government of the Province of Ontario refuses to recognize the 100-square mile tract on Lake Temagami as an Indian Reserve, claiming that all of Ndaki-menan has already been surrendered by the Robinson-Huron Treaty of 1850. Despite continuous protests by the Teme-augama Anishnabai, the Ontario Government allows exploitation of Ndaki-menan by European settlers to proceed.
1906. Lands immediately north of Ndaki-menan are sold by the resident Cree and Ojibwa Indian people to the Crown under the terms of the “James Bay Treaty (Treaty Number Nine)”. Despite interferences by the Ontario Government, Ndaki-menan is still legaly Indian land.
1943. The Ontario Government has been threatening for ten years to evict certain members of the Teme-augama Anishnabai from Bear Island, Lake Temagami, where they have homes, for failing to pay rent to the Province. To avoid further conflict, the Federal Government buys Bear Island from the Province. The Teme-augama Anishnabai, however, refuse
to acknowledge this purchase as a settlement of their grievance, because no formal sale or surrender of Ndaki-menan has taken place.
1971. The Federal Government declares Bear Island to be an Indian Reserve.
1973. August. Chief Gary Potts of the Teme-augama Anishnabai files a “Caution” against all unregistered “Crown” lands within Ndaki-menan, asserting that the area in question is still Indian Land within the meaning of the Royal Proclamation of 1763. The Province tries to have the Caution lifted. By April of 1978, after procedural difficulties have been eliminated, the case is before His Honour Judge Fernand Gratton of the Ontario District Court, North Bay.
1978. May. The Attorney-General for the Province of Ontatio sues the Teme-augama Anishnabai in the Supreme Court of Ontario, seeking a number of declarations, among them that the Teme-augama Anishnabai have no interest whatsoever in Ndaki-menan.
1979. January. Trial pleadings exchanged and completed.
1979. August. Discoveries of Gary Potts representing the Teme-augama Anishnabai are adjourned until all documents to be relied on at Trial are produced by the Defendents.
1979. December. Bruce Clark, Lawyer for the Defendents Discovers the in Provincial Representatives for three days, on what facts they rely, supporting their contention that their is no Indian Title to the Lands in question.
1980. January and February. Province Discovers Chief Gary Potts for seven days, investigating the facts we rely on supporting our claim to the Lands in question.
1980. May 15 – Pamour Porcupine Mines becomes a party to the court case as a party defendant with the Government of Ontario in our Counter-Claim in Action No. 25196/78 before the Supreme Court of Ontario.
1980. June 26 – Supreme Court of Ontario’s Master, Sandler, reserves decisions on motions by the Attorney General’s Ministry and Pamour Porcupine Mines to have portions of our Pleadings struck out.
1980. July 8 – Meeting with Deputy Minister of Indian Affairs, Paul Tellier (Federal Government), Deputy Minister, Keith Reynolds of Ministry of Natural Resources (Ontario Government) at Bear Island. Mr. Justice Patrick Hartt chaired the meeting. The Teme-Augama Anishnabai were represented by the Executive Council with the Youth Council present also.
1981. Jan. 13 – Master Sandler hands down his decision from June 26, 1981, hearing – concluding that 1978 Pleadings remain intact, with addition of clause, including Pamour Porcupine Mines in Act No. 25196/78 before the Supreme Court of Ontario.
1981. Jan. 27 – Department of Indian Affairs confirms its position that the Temagami Tribe was not a party to the Robinson-Huron Treaty of 1850.
1981. April 2nd – Meeting with Ontario government representative and staff, Clovis Demers, Office of Native Claims, Justice Hartt and staff, Teme-augama Anishnabai council at Bear Island. Ontario presents position paper in which it states that it will continue to treat Ndaki-menan as public lands of the Crown. Teme-Augama Anishnabai rejects this and suggests instead that we file our position on what land uses will continue while negotiations are in progress. It is agreed that all parties will forward their positions to the Indian Commission of Ontario by June 1982, for dispersal to all parties.
1981. April – Teme-Augama Anishnabai receive 10% of their requested negotiation budget.
1981. June 18 – Teme-Augama Anishnabai forward their position to the Indian Commission Office, as agreed on April 2nd.
1981. September 14 – Justice Hartt of the Indian Commission of Ontario issues status report on negotiations stating that the Federal and Provincial governments committments to negotiate the claim is not supported by their performance to date.
1982. January 26 – Clovis Demers, Ontario Native Claims, informs Teme-Augama Anishnabai that Mr. Robert Weir will represent Ontario Native Claims at the negotiating table in the forseeable future.
1982. February 18 – Negotiation budget 1982/83 presented to Mr. Fred Glynn who informs Chief Potts that the Cabinets priorities are the comprehensive claims, not specific claims, so don’t expect that our budget requests will be met.
1982. April 7 – Tribal Council meets with Alan Pope and other representatives of his Ministry, also representatives of the Attorney General’s office at Indian Commission of Ontario office.
1982. Mid April – Corporate Policy informs Chief Gary Potts that they can only meet approximately 30% of our budget request.
From the Teme-Augama Anishnabai:
Chief Garry Potts.