Land claim negotiations languish

By Brian Back                                              POSTED: MAY 21, 2009


Has anyone noticed the land-claim negotiations drifted over the horizon and didn’t come back?

They were suspended in August by the newly elected Chief and Council, led by Chief Gary Potts, of the Temagami First Nation.

Normally, one side of a negotiating table stands up, glares at its opposite and storms out. This time half of one side stood up, glared at family, and stormed out. The other side — Ontario and Canada — was left rubbing its eyes.

John McKenzie, chief of the Teme-Augama Anishnabai, the TFN’s negotiating partner, was shocked when he received a memo on August 15 from Potts notifying him of the halt. It said “any previous working Agreements between the TAA and TFN Chiefs and Councils” are suspended until the community has reviewed and considered the "TAA Executive Council status and how it affects the TFN community and their chiefs and councils regarding land and land use negotiations concerning our motherland (Daki Menan).”

The memo provided no schedule or reason for the review. Potts would not comment for this story.

As all negotiation agreements were joint, it effectively halted negotiations just as the Draft Settlement Agreement was being finalized. There had been no advance discussion with McKenzie, the TAA’s Executive Council or in a combined meeting of the two councils, which jointly direct negotiations.*

Now, the fate of the negotiations will be determined by an impending court ruling on the controversial election, which brought Gary Potts back as chief after a 13-year absence from office. The decision could replace the Potts-led council with the pro-negotiation council of Chief Roxane Ayotte, elected in a re-run.

The court may rule for Potts' election, Ayotte's election or a new one. In the latter case, it is expected to go to Ayotte because of the overwhelming support shown her at recent assemblies, the impeachment of Potts and the election re-run. The court will not render a decision until after the close of mediation, underway today and tomorrow, on Bear Island.

The TFN constitution, as McKenzie noted, required all major decisions to come from the tribal assembly. Potts had tried that route on at least two occasions with a resolution for suspension: June 2005 and March 2008. Both were defeated.

Chief and Council probably could not directly suspend negotiations, so it suspended the joint agreements — which had the same effect. But that action, too, according to the constitution, required assembly approval. It did not have it.

Although little was said during the election about suspending negotiations, it was widely understood on the reserve that this was the platform of the chief and second chief, Second Chief Peter McKenzie said.

The March suspension resolution (both are similar) said the review process would include “taking the time necessary to share our understanding of who we are; reconnect with Daki Menan; address our governance issues, including citizenship; understand the impact of the Robinson Huron Treaty from the signatories perspective; foster an understanding of the court process and its impacts; and development of a community vision with one voice.”

Ayotte thought these were valuable ideas, but saw a disconnect. “I don’t understand why we have to shut down negotiations to do all those.”

“Our time has come to re-unit as a People,” the resolution read. Ironically, the suspension may have done the opposite. It was carried out unilaterally by the smaller TFN, excluding the nation as a whole.

Tribe united

Two groups represent the aboriginal community: Temagami First Nation and Teme-Augama Anishnabai. The 653-member TFN represents status Indians, defined by the Indian Act, who are also band members. The 1,200-member TAA represents the entire Temagami tribe, which includes the TFN members and non-status Indians — also known as Metis, lost their status, or their forebears did, under Indian Act rules. Until 1992, the TAA was the sole aboriginal negotiator.

Teme-Augama Anishnabai is the traditional name for the tribe, in use when non-aboriginals arrived on their land. In 1907 the Canadian government, flexing the Indian Act, created the Temagami Indian Band. It made a list of the members, excluding some, and anyone not on it was neither an Indian nor part of the band. A bureaucrat now knew better who was a “citizen.”

Over the years others lost their status, their nationality.

"My aunt [Rita O'Sullivan] next door was considered non-status and my mother [Laura McKenzie], her sister, was status," said John McKenzie. "That made no sense to me. We are all blood related." O'Sullivan lost her status, under Indian Act rules, when she married a non-Indian.

(She regained her status after the 1985 revocation of the Indian Act clause that took it.)

In an act of defiance, Potts, as a young chief, led his people to take back from Ottawa the right to decide their citizenship, the most basic lever of self-determination.

“The Metis were all organized and they knew who they were and we knew who we were," said McKenzie. "It’s just that one was called non-status and one status. We decided if we are going to court [over the land claim], we are going as one people.”

In 1975, a resolution passed in the tribal assembly calling back together the Deep Water Nation and the creation of an organization for all descendants of the traditional families. They called it the Teme-Augama Anishnabai.

Tribe undermined

The suspension of negotiations, particularly in a manner that leaves the appearance of internal squabbling, can only weaken the TFN's hand with Ontario. The province is the key player as these negotiations are primarily about land, and it is the landlord.

It is the fourth settlement round — 1980-82, 1986-87, 1990-94, and 1999-2008. Memories are still vivid of the internal aboriginal acrimony in 1994 that resulted in the settlement’s rejection. Ontario watched taxpayer dollars walk out the door with each effort. How much will government invest in negotiations or the settlement if it is wary that the aboriginal community will ever sign? Or even stay to talk?

There is concern among some members that the influence of local interests over Ontario and Canada is rising. A park on reserve lands on the shoreline of Lake Temagami was added to the settlement agreement. Locals wanted it to protect the shoreline from aboriginal development.

The settlement will inject economic development funding. That, now, is postponed.

The land claim has been a dark cloud for everyone in Temagami, particularly on Lake Temagami. They have been waiting since 1973 for clear skies.

Potts continues to file the minimum paperwork. Negotiations aren’t dead.

* The halt also created its own legal crisis. Back in 1989, the TFN-TAA did not have the money to pay its lawyers for the land-claim appeal. Borden & Elliott went to court in 1996 to collect $1.1 million. Finally, in 2003, the court judgment made the money payable out of settlement funds.

When the council halted talks, the bill came due. Borden tried to garnishee the funds that the band receives from Casino Rama revenue sharing. (The bulk of the band’s $7-million budget is ungarnishee-able government funds.) Since 2000, the TFN has received over $3.5 million. Back in court, the judge ruled on April 7 that the Indian Act protected the money, despite coming from Rama, and it could not be garnished. Borden has appealed.










"My aunt next door was considered non-status and my mother, her sister, was status. That made no sense to me. We are all blood related."

Chief John McKenzie,

    Teme-Augama Anishnabai









1907 Band created under Indian Act
1972 Potts becomes chief

Land caution – a notice of land claim – filed


Teme-Augama Anishnabai tribe reunited in a formal organization


Negotiations with Ontario and Canada


Court ruled against land claim


TAA rejected Ontario settlement offer


Land claim lost on appeal


Negotiations led to preliminary agreement, ultimately accepted by TAA but rejected in close vote by Temagami First Nation

  1991 Supreme Court rules on land claim: fiduciary rights only due 

Potts ended term as TAA chief, left politics


Negotiations almost completed the draft agreement


June 12: Potts elected TFN chief

August 15: TFN's Chief and Council suspended negotiations










[Gary Potts] wanted a review on the negotiations and he’s not done it yet. "

      — former chief Alex Paul








  BACKGROUND:  Land claim negotiations




       Three Elections, Two Chiefs, One Quagmire











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