Chretien testifies

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Former prime minister Jean Chretien, looking fit, tanned and rested, arrived in the Federal Court of Canada Feb. 23 to testify in the Samson Cree Nation trust monies case.

He sat quietly near the Crown lawyers until he was summoned to the witness stand, exchanging waves and silent greetings with many of the observers in the crowded public gallery.

It was day 282 of the trial that began May 1, 2000 after 372 days of examinations for discovery. Samson is suing the federal government for an alleged $1.385 billion in lost oil and gas revenues, plus an accounting and interest, and for direct control of its approximately $370 million in assets. Ermineskin First Nation is also alleging that its oil and gas revenues were poorly managed by the Crown.

Justice Max Teitelbaum effusively welcomed the now retired political heavy-weight.

"Before you are asked to be sworn in, Mr. Chretien, on behalf of the court, I would like to welcome you here. The court truly appreciates you taking the time and making the effort to be here," the judge said. "You may have been given a copy of my judgment as to why I requested that you be here on a motion made by Samson First Nation peoples. It's because of all you have done for this country as minister of Finance, I think, minister of Justice and, of course, minister of Indian Affairs and Northern Development. So thank you, sir, for coming."

O'Reilly presented Chretien with a package of documents that were arranged under 17 headings, including one for the 1969 White Paper on Indian Affairs.

Chretien had conducted a Canada-wide consultation shortly after being appointed Indian Affairs minister on July 6, 1968. Eventually, he presented his policy on ending the Indian Act, abolishing the reserve system and assimilating Native people into the Canadian context. It was opposed and eventually defeated by Native leaders.

Chretien admitted that Canada was being criticized frequently at the international level at the time for its treatment of the Indigenous peoples within its borders.

"Internationally, you know, the system of reserves was questioned quite often as being unacceptable," he said. "I remember talking to Canadian diplomats at the [United Nations]. When they were debating South Africa [apartheid] at the UN, they were told Canada was in no position to comment because we had Indians living on the reserves in Canada. So it was very difficult because Canada has always been at the forefront of the advancement of human rights and there was always that problem."

He told the judge that he had attempted to put himself out of a job as Indian Affairs minister because if the White Paper had gone forward he would have been the last minister of a department that would have been abolished in favor of self-government for First Nations. When the First Nation leaders stopped him, he said that at least gave him an answer for Canada's critics internationally.

"I said, 'Fine, if you don't want it, at least I can say internationally that if we have this system it's because the Indians themselves don't want to abolish the reserves,'" said Jean Chretien.

When O'Reilly asked him if he understood that treaties are important to Native people, he said "Yes. The treaty was very important. And at the same time they were telling us that it was . . . living on the reserve was discrimination, too. And that was the application of the treaties, but it was making the government uncomfortable to consider that the Natives were living on special land reserved for them. And that was the debate between the meaning of the treaties, their attachment to the treaties, and the application in real life of modern society of what it is."

The witness was asked if he recognized that Indigenous nations were as different from each other and as distinct as European nations.

"I don't want to get into a debate of what is a nation or not. You know, this is an endless proposition. Canada is a nation. And the Naives, they are nations. . . I'm not a linguist to decide the meaning of words. It is for the court to interpret the words for me. We refer to the Natives as a group of nations and within Canada," he said.

He was asked why, if Canada accepts that the various Indigenous nations are distinct from each other, they were all treated the same.

"There was only one Indian Act," Chretien said.

Later, O'Reilly found it was not hard to get Chretien to admit that the government is a trustee for First Nations people, a key point in the Samson case.

"Does that include resources like oil and gas?" O'Reilly asked.

"I presume," Chretien responded.

He also got the former PM on the record about the standard of duty expected from a trustee.

"[A]s a trustee you have to act as a good father . . . le beau pere de famille en francais. So your task is to avoid mistakes. Mistakes are made, but you have to act to avoid mistakes," he said.

Later, he was asked if the Department of Indian Affairs, when he was minister, understood that First Nations monies had to be managed, not just for the present generations, but for future generations.

O'Reilly asked Chretien many questions about his role in enshrining Aboriginal rights in the Constitution in 1982 when Chretien was Justice minister. Chretien admitted he had to fight the provinces to get constitutional protection for Aboriginal rights.

"You can see I was pretty persistent and consistent trying to get there. Perhaps I did not go as far as I hoped for," he said.

Chretien also said treaty rights were "very important."

O'Reilly told Chretien that the Crown and Native nations entered into treaties for different reasons. He said that the Crown did so to gain land and resources; whereas the Native parties entered to "share their lands and resources in exchange for needed assistance from the Crown, which would in turn enhance their ability to pursue their traditional lifestyle and maintain their livelihood while making he transition to a new economy."

He asked the former PM if that was his interpretation of the two points of view.

"It's what we try to accommodate to achieve the proper balance ... between protection of Aboriginal rights and the modern economy," he said.

O'Reilly asked the witness about his views-and presumably the views of the government during his time there-on the fact that First Nations have different interpretations of treaties. First Nations "were after a sharing of the lands and resources" while the Crown was after a "land surrender," he said.

"That is the debate," Chretien said. "Because of the Royal Proclamation of 1763, when the Brit soldiers came here to conquer the land they were obliged to sign treaties, but they wanted to occupy the land and that was probably a treaty to maintain peace."

Chretien said it would be up to a court to decide on which interpretation would prevail.

O'Reilly asked Chretien about the Indian Affairs minister's duty as a trustee to actively manage Indian monies to ensure the best return on investment.

Chretien bragged that he had done just that during his time as Indian Affairs minister, raising the interest rate on monies held by the Crown in trust for First Nations from four per cent to more than seven. O'Reilly got the former prime minister to acknowledge that a trustee must, in the course of doing a creditable job managing someone else's money, take an active, hands-on approach to the task.

He then got the former prime minister to testify that there was a formula in place within government for determining the interest owed on Indian monies.

"And the formula hasn't changed for 25 years," O'Reilly told him.

"I don't know," Chretien said. " . . . I'm not familiar with that."