Chretien testifies 40 years of Indian policy revealed

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It was originally supposed to last four days. Then it was down to two. Then James O'Reilly, lawyer for the Samson Cree Nation, found a way to get it all done in one day.

And now former prime minister Jean Chretien is on the record in Victor Buffalo versus the Crown.

The former prime minister, looking fit, tanned and rested, arrived in the Federal Court of Canada in downtown Calgary, one specially constructed for this case, about 10 minutes before court was set to begin on Feb. 23. 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 crowded on the business side of the bar as well, with five lawyers for Samson, two more for the Ermineskin Cree Nation, four gowned representatives of the federal Crown, one for the attorney general of Alberta and Chretien's personal lawyer, all arrayed before Justice Max Teitelbaum.

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.

The media stakeout of the 8th Ave. office tower that houses the court began some two hours before court was scheduled to begin. Reporters wanting to question the former PM about his involvement in the Liberal Party sponsorship scandal covered every entrance to the building.

Chretien pushed past the reporters when he arrived, saying "pas de commentaire" or no comment.

Justice Teitelbaum effusively welcomed the long-time Liberal leader.

"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 completely into the Canadian context. It was opposed and eventually defeated by Native leaders.

Chretien showed he was aware of the irony in the policy paper's name.

"[It] was called the Indian policy," he said to O'Reilly. "You refer all the time to the White Paper, but I never wanted to have a White Paper made by white men on that issue."

He 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 bee 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,'" he said.

Although Chretien frequently responded to questions by saying he didn't remember or that he had moved onto another ministry at the time something had happened and knew nothing about it, he did respond to many of O'Reilly's inquiries, although sometimes he appeared impatient.

He claimed credit for getting rid of the Indian agents and starting the devolution of powers to First Nation leaders.

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. He saw what was coming and cut O'Reilly off.

"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 Natives, 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 sme.

"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.

Chretien answered employing a phrase from the civil law of Quebec, which is based on the Napoleonic Code rather than English civil law.

"[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.

"I had in mind of what a good father will do with the money as minister," he replied. "So perhaps if some of the money was needed right away, I might have authorized that. It would have been a normal action. And some money was probably redistributed to the citizens because, you know, you cannot . . . if that theory were to apply, none of the money could be distributed because there's new generations coming up to eternity. So you have to decide as a good father what to do with the capital that you have."

He later added that "some of [the money was used] for the future and some of it was for today."

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 importnt."

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, O'Reilly said, "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 the 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.

"The reality today is trapping is not the industry it used to be. They don't survive in the traditional way so we have to adjust to the new reality."

James 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," Jean 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.

The only time O'Reilly got aggressive with his witness came when he was asking about how the Crown could continue to enforce the letter of the Indian Act after Aboriginal rights were enshrined in the Constitution in 1982.

"Aw, you go and debate that in front of a court, not in front of me," Chretien said. "If you claim the Indian Act is non-constitutional, you argue that with the court, not with me."

Chretien protested that he was being asked legal questions when he was not t