Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 14 - Evidence
OTTAWA, Tuesday, May 6, 2003
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-6, to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts, met this day at 9:04 a.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Our first witness this morning is the Honourable Robert Nault, Minister of Indian Affairs and Northern Development. Accompanying Mr. Nault are Mr. Gilles Binda and Mr. Robert Winogron from Indian and Northern Affairs Canada.
The Honourable Robert D. Nault, Minister of Indian Affairs and Northern Development: Madam Chair, it is a pleasure to appear on Bill C-6, which is a vital legislative initiative because, simply stated, it is being put forward to resolve longstanding grievances in a fair and honourable manner and because the resolution of those grievances will lead to great opportunities for First Nations. As honourable senators are aware, specific claims have arisen primarily because of unfulfilled promises and breaches of obligations to Indian bands under treaty or other agreements with the Crown or under the Indian Act. You will also recall that Canada has been working to resolve claims for 30 years through its Specific Claims Policy. To be sure, there has been some measure of success because 246 agreements have been reached across Canada. These agreements, valued at $1.4 billion, have added substantially to the land base of reserve communities — some 16,000 square kilometres, as I understand.
It has also long been recognized that both the process and the pace of achieving fair and just agreements have been arduous, to say the least. We have not been getting there fast enough. This is not fair to anyone involved, least of all the First Nations communities that have been held back from achieving their potential because of unresolved claims.
That is why the government introduced the Indian Specific Claims Commission in 1991 as an interim measure to spur the process of resolving outstanding claims. It has been a useful mechanism in helping to advance our understanding of specific claims and how to address them. The Indian Specific Claims Commission knew, as we knew, that something more is definitely required if we are to effectively address past grievances and build dynamic, flourishing First Nations economies to support dynamic and flourishing communities.
Under the present system, the process drags on for too long. As well, First Nations have concerns about independence, impartiality and accountability. This is not only frustrating for both partners in the negotiations but also serves to hold back First Nations from achieving their full potential. That is why we, together with First Nations, commissioned the Joint Canada/First Nations Task Force in 1996 to look at how we could more effectively address unresolved claims. We knew that to resolve the more than 600 specific claims on our books with any sense of urgency and fairness, new mechanisms and new processes would be required. The task force report in 1998 recommended an independent claims resolution body, much along the lines of that being proposed in Bill C-6 — the Canadian centre for the independent resolution of First Nations specific claims.
Underneath that unwieldy title lies a serious purpose — a neutral, transparent mechanism to assist Canada and First Nations in the more effective and timely resolution of outstanding claims, so that Canada may honourably fulfil its obligations and First Nations can get on with the job of building their economies and their communities. It is important to know that the claims resolution centre is to be an arm's-length body from government and free from influence and bias. Under the leadership of a chief executive officer, there will be two separate and distinct entities: a commission to facilitate the resolution of negotiated claims settlements and a tribunal to act if all reasonable efforts at negotiated settlements and dispute resolution should fail. In addition to a chief commissioner and vice-chief commissioner, the commission will consist of up to five other members. There will be chief and vice-chief adjudicators and five additional adjudicators. The tribunal will be a decision-making body and so the majority of members will be lawyers.
I have invited First Nations to put forward their nominations for these positions. A key feature of the proposed act is that the commission will have the full authority to employ modern dispute resolution techniques, including facilitation, mediation, non-binding arbitration and binding arbitration when both parties agree. The commission will also take over the funding for First Nations participation from my department, Indian and Northern Affairs Canada, INAC.
This is another important step toward ensuring arm's-length decision making by the centre. The commission, and not the department, will support First Nations' participation and will be responsible for the appropriation of funds. Subject to Treasury Board approval, the commission will establish its own funding criteria for the research and preparation of claims to be filed and for the advancement of claims as they advance through the process. This will include authorizing expert and technical studies, community consultations and other expenses of First Nations relating to the submission and negotiation of claims.
Honourable senators, I will now deal with what I classify as a few myths or misunderstandings about Bill C-6.
First, the proposed legislation does not place a financial limit on specific claims settlements. It does place a $7- million limit on the authority of the tribunal to make binding decisions at the validity and compensation stages. However, all claims, regardless of value, will have access to the commission and use of its services.
The reason for the $7-million limit on the tribunal's authority at the validity and compensation stages is based on past experience, which has shown that the value of most specific claims has not exceeded that figure. As of last December, 78 per cent of the 246 specific claims settled were valued at under $7 million. Moreover, a review of the current specific claims shows that most would have access to the tribunal within these limits.
Negotiations for large claims require flexibility, creativity and cooperation, which can only exist at the commission, not at the tribunal. The alternative dispute resolution services and the mediation and facilitation functions provided by the commission will assist Canada and First Nations in resolving these larger claims. Beyond that, however, there would be a provision for review in the regulations, after the tribunal has been in operation for a period of time, in the event that changes may be warranted.
The second misunderstanding relates to the definition of a ``specific claim'' provided by the bill. What Bill C-6 does is convert the existing specific claims policy language into legislative terms. The definition provided in Bill C-6 reflects the evolution of case law since specific claims policy was set out in 1972. It more accurately reflects the range of claims actually brought forward by First Nations. The bill provides greater clarity, which will allow all to use this centre efficiently.
More generally, I want to assure you that there will be further opportunities to improve the way the claims resolution centre works. Allowing it to get up and running will provide Canada and our First Nations partners with the opportunity to determine if it needs additional tools to better carry out its mandate.
In fact, a thorough review of the centre's mandate and structure will be initiated between three and five years from the date the legislation comes into effect. This will entail an assessment of the efficiency and effectiveness of the centre, along with its commission and tribunal divisions. When this review is completed, the minister will table a report before Parliament that will detail any recommended changes to the act, including changes to the functions, powers and duties of the centre, its commission and tribunal.
The Specific Claims Resolution Act has reached this stage as a result of a lot of history, experiences — both good and bad — study, examination and, I dare say, plain hard work. As Senator Austin said in March, ``The made-in- Canada approach we have adopted in this act reflects the fact we have learned from the experiences of other countries, embracing the best but avoiding the mistakes we observed in other systems.''
The resolution of specific claims, in my view, is key to building vibrant First Nation economies and communities. Claim settlements already reached have produced many examples of progress by First Nations in investing in their own communities and benefiting from that investment.
Madam Chair and honourable senators, as I said at the outset, the Specific Claims Resolution Act is a vital legislative initiative in its own right, and as part of a broader package of legislation designed to enable First Nations to move quickly toward self-government and economic independence. These include the proposed First Nations Governance Act, which I hope will be coming before you shortly, the proposed First Nations Fiscal and Statistical Management Act and the First Nations Land Management Act.
The Specific Claims Resolution Act, like these other initiatives, is about fairness for First Nations people. It is about listening to them and hearing what they say, about keeping promises and recognizing our responsibilities as legislators and acting on those responsibilities. It is also about building respect among us and trust relationships, so that First Nations can enjoy a quality of life that other Canadians take for granted.
I urge you to ensure speedy passage of this bill and invite you to ask questions.
The Chairman: Thank you very much.
Senator Stratton: Minister, I congratulate you on your courage in carrying this out. This is quite a chore. Having had a relationship with Indian and Northern Affairs Canada going back to the late 1970s with the former minister, Jake Epp, I can appreciate what you are attempting to do here.
It is disturbing to us when First Nations people come before us who are categorically against this bill, as well as against Bill C-7 and Bill C-19. We get a little disturbed when we hear that. When we asked them why they are against this bill — and we can deal with this bill in the beginning — they just said there is too much wrong with it to fix it and it would be better to scrap it and start over. That was based on their claim that during the task force deliberations, their recommendations were not adopted and were largely ignored.
Would you like to comment on that? I find that the most disturbing aspect of this whole process.
Mr. Nault: As you do, senator, I find it unfortunate that some leaders are coming to the committee and suggesting a complete rejection of a series of bills that we strongly believe will improve their lives. I cannot speak for the leadership, but I can give you my own thoughts.
There is a group of Aboriginal leaders who espouse the position that they are sovereign and that the Government of Canada has no right to develop legislation without their consent. It is our position that we have a responsibility, and Parliament has a duty, to present legislation that meets the needs of those people.
I doubt very much that anything I presented to you would be acceptable to that particular group. However, there are many who believe, as I do, that Aboriginal people in this country, who are part of our constitutional family, need strong institutions to be successful.
I will use the example of the institutions that have already been created north of 60. There have been a number of negotiations over the years in the territories that have developed governance structures for Aboriginal people — both land claim and self-government structures and a form of public government. If you were to ask certain individuals about those claims and agreements, they would find them equally unacceptable.
Yes, we do live in a scenario where there is a strong difference of opinion on certain matters. However, I think there are many who believe as I do, that to move forward we will have to build those institutional structures; and that debate must be held throughout this generation about where Aboriginal people fit in our Canadian family, if they believe they are in the Canadian family.
I cannot, as you know, negotiate sovereignty. I do not have a mandate, nor would any minister of the Crown have a mandate, to negotiate those kinds of arrangements.
I believe that the legislative suite we have put forward meets our obligations to Aboriginal people and moves forward our position as a government on the inherent right to self-government within the constitutional family.
Now, I categorically disagree with those who suggested to you that this bill does not reflect the work of the task force and/or its recommendations. I would highly recommend that you put the two side by side. You will find only two differences, in my view.
One difference is that, for the purposes of the Financial Administration Act, I had to put parameters around the costs. Obviously, Aboriginal people would prefer that there were no $7-million cap on the tribunal. In truth, I wish it were not there as well, because it would make for a stronger tribunal if there were more flexibility. However, under the Financial Administration Act, we need some way of managing the budget. How can you do that if there is no restriction on costs per year or how much you would allow the claims to move forward? That is why it is there.
The second difference was on the recommendation that we jointly appoint commissioners and adjudicators. As you know, the prerogative, through Order in Council, is the Prime Minister's. As I understand it, that prerogative has not been given up very lightly or very often. I have attempted to deal with that through discussions with the Assembly of First Nations and other leaders and suggestions that we will work closely with them in putting names forward to the Prime Minister, as we normally do, and allow him and his office to make those final decisions. That is the normal process for Order in Council appointments.
The other issue, as I understand, seems to be a belief that somehow, the definition of a ``specific claim'' has boxed people in, when in fact we think it has broadened the abilities for claims to be brought forward, based on the legislative structure that we have in place and the legal jurisprudence that has developed since specific claims came into play in 1973. We think that this definition does serve its purpose.
Other than that, I do not really know what the differences are. The task force said, ``Let us have a commission that is independent. Let us have a tribunal to which we can go, as a last resort, to see if we can resolve our differences.'' I can assure you that the structure that we put in place intended that the tribunal would be used sparingly, because it is the place of last resort. We are supposed to negotiate, which is the role of the commission, the commission has all the tools at its disposal and we have independent commissioners. I strongly suggest that if you do not believe that this government or the one before chose competent people as members of different boards and commissions across the country, perhaps you can give me a list of those you think have not been successful. Perhaps the Auditor General would be a good place to start. Once we have appointed people, they seem to be extremely independent and capable of making their own decisions, and we think that will go a long way toward success.
I will make this quick comment. No one in this room, including the minister, knows how successful this centre will be, because it is unique to Canada. It has never been tested anywhere in the world. This is another unique Canadian opportunity to try something that has not been attempted before and then to review it after three to five years to see what has transpired, what are the successes and failures, correct mistakes and keep moving forward. We all agree that our main emphasis is on moving specific claims more quickly through the system so it will not take 60 years, which is what I am told it will take, just to resolve the ones presently in the system at the rate we are going. We need to try something different, and we need to do it in a Canadian way. If you are saying to me, or anyone around the room, that they can assure me or I can assure you that this will be successful, I am here to tell you that is not so. This is the best step we can make, and we will test it and see how it works. If not, nothing is stopping First Nations from going a different route. This is not a funnel that puts people into a system from which they cannot escape. It is another tool to allow us to improve our abilities to resolve claims.
I will stop there. You asked a long, general question, and I gave you a longer answer. If you can give me more specifics, I will give you specific answers.
Senator Stratton: Part of the criticism is that it is typically paternalistic. It is colonialism all over again. I am simply reflecting comments made to us. In the 21st century, surely to goodness there could have been more cooperation with respect to the appointment process. I have argued with Senator Austin about this. In this century, perhaps we need to look at things in a new way, and specifically with respect to appointments to the commission.
I remember working on the Canadian Wheat Board a few years ago when revisions allowed for free elections of commissioners to that board — not the entire board, but a portion of it, in order to ensure a transition period — so the farmers would develop a greater trust in the board. Whether that has happened or not, I am not sure, but at least it is more democratic.
I would agree that the commissioners should have the appropriate knowledge, and you said the majority should be lawyers, and one can understand why. However, why would you not allow the First Nations people to put forward a list of names? I remember during the discussion at Meech Lake on appointments to the Senate that the provinces would put forward a list, and the Prime Minister would select from that list. Surely First Nations could do the same thing in this instance, and the Prime Minister could select a number of commissioners from that list, so that First Nations people could be appropriately represented by people whom they trust. That is the fundamental issue here. I have a bill before the Senate now with respect to the appointment of judges and senators utilizing virtually the same idea. The appointment process needs to come from the people. Why would you not contemplate that type of process in this instance?
Mr. Nault: We have contemplated that, and I have made that offer to the Assembly of First Nations, so that the Minister of Indian Affairs — either myself or the next minister — would work with them to prepare a list to be submitted to the Prime Minister's Office. I have made that suggestion to them in writing as a way of advancing the advice that we would give to the Prime Minister. It is not in the bill, but it is certainly in a letter. I am quite willing to give you a copy of it.
I have also articulated in this letter some of the other concerns that have been raised. As I understand it, four of them have made the rounds in every letter across the country. I have articulated the response to those many times, to defend the fact that I do not think we will convince the centre to change the Order in Council process, but that does not mean we cannot influence the decision making through the minister and the AFN jointly putting together those suggestions. That offer has already been made, senator.
Senator Stratton: Would you make a commitment here that the list that is submitted to the Prime Minister would include names brought forward with the concurrence of the First Nations people?
Mr. Nault: Exactly. It is in writing. I have sent the letter already.
Senator Stratton: Can you send me a copy of that?
The Chairman: The committee will receive the documentation and it will be presented to all committee members.
Senator Stratton: Mr. Minister, this is an easy question to ask, but a difficult one to answer. We will have three bills in front of us sequentially: Bills C-6, C-7 and C-19. What are the interrelationships among the three? I think we need an overview. Perhaps you or an official from the department could give us an overview of the interrelationships and the linkages among the three. For us to appropriately deal with this bill and the others coming down, we need to know and understand what they are. I would appreciate it if we could have your help there.
Mr. Nault: I can do that for you. The specific linkages among Bill C-6, Bill C-19 and Bill C-7 are the objectives of building modern institutions to allow Aboriginal people to be successful. As I have been saying to many people across the country, there needs to be recognition of a third order of government.
I have said that many times. We call it a ``policy on self-government.'' I am a little more direct in my opinion. If we have constitutionally protected Aboriginal rights and our position is that there is an inherent right to self-government, then in fact we are moving toward a third order of government.
You cannot have a successful third order of government without proper institution building. The biggest weakness in the communities is that they do not have the institutions we all take for granted.
You wonder why success does not occur no matter how much money you put into something. I believe that we have it all wrong. We have to start from the premise of getting the fundamentals right first and then build from there.
Bill C-6 is about ensuring that we can work in partnership to develop a way of resolving our differences vis-à-vis specific claims through negotiation. That does not diminish the right of First Nations or the government to go to court if we do not believe that there is a sufficient argument for a certain claim for wrongdoings in the past.
As an ex-labour negotiator, I see it as a dream to have all those tools that do not exist now to negotiate a settlement. We have to do it all in an ad hoc way when we try to negotiate, which is expensive. This would be a system set up specifically to allow us to work together to arrive at a result that we are all seeking. That is, the resolution of these small and large claims.
Bill C-19 and Bill C-7 are more in the category of governance, from the perspective of trying to build fundamentals of good governance, whether electoral codes, financial administration codes or administration codes. Bill C-19 would help build a suite of financial administration arrangements and relationships.
The fiscal relationship between governments is important. There is no fiscal relationship between Aboriginal governments and Canada. The fiscal institutions bill is intended to build those kinds of institutional structures between our governments.
It is safe to say that if there is going to be a successful Aboriginal government in Canada, it will have to have a means to generate revenue. Are we suggesting that the Government of Canada will continue to pay the whole bill? I do not think that is the intent of Aboriginal governments, or of our government.
There must be an ability to successfully build an economy. Bill C-19 and Bill C-7 are intended to do just that.
Are there those who believe that that is colonialism? It seems so. You might have to ask people what that means in today's terms, because it is beyond me. I do not know what it means any longer. All I know is that well-educated Aboriginal youths leave the reserve as soon as they can simply because they do not believe that there is any hope of them being successful in their community.
There are a few exceptions. Generally speaking, however, in the 600-plus communities that I have had the opportunity to visit, there is much work to do and institution building necessary to create success.
Senator, I can give you a breakdown in the sense of ``connecting the dots,'' as we call it. However, in a general sense, Madam Chair, that is the objective of this suite of legislative initiatives.
I want to assure that you there is more to come. We believe that there is a lot more work to do. If we can be successful in moving forward on some of these initiatives, we can start to look at Aboriginal women's issues, which we talk about internationally on a regular basis.
We have to tackle one of the most fundamental issues within reserve life, that is, the definition of ``membership.'' Sooner or later, we will have to deal with that issue. As it is presently constituted in the Indian Act, in 6.(1) and 6.(2), there will be no such thing as a status Indian in some communities within 20 to 30 years.
If that is the intention of the Government of Canada, then stick with the Indian Act because it will happen on its own. I will not have to do anything about it. However, if we want to move forward on improving the lives of Aboriginal people with respect to their culture and their community of interest, those issues have to be tackled. We cannot run away from them every time someone disagrees.
I give you that as my reason for sitting here and why I have stayed in this portfolio. It is important to all of us.
Senator Sibbeston: I come from a region of the country where there are good relations between First Nations and the minister. The minister has come to the North often. Generally, it has been a positive experience.
Last week, at the Energy Committee, we heard testimony from the Yukon First Nations. The grand chief was there. They spoke of their involvement in Bill C-2 and the socio-environmental assessment review process that is to be put in place in the Yukon.
It was really delightful to see the outcome of the work of First Nations, the territorial government and the federal government. It was a delight to deal with that piece of proposed legislation.
I was present last week at the demonstration here on Parliament Hill. Aboriginal people were demonstrating against the government with respect to a number of bills coming forward. I sat on a panel that the AFN organized. It pains me to see the emotional disparity and the conflict that presently exists. There are strong emotions against some of these bills.
It is a new experience for me. I am accustomed to good relations
Mr. Minister, a task force was set up in 1996, I believe, and it reported in 1998. We heard testimony from representatives of the Assembly of First Nations last week that gave the history of that task force and the recommendations.
They worked hard on it. They say that the outcome, Bill C-6, will actually worsen their situation. They say that they would rather stay with the present commission than come under the provisions of Bill C-6.
The testimony is really alarming. I do not know all the details. If you were to read the transcript, the general impression that they gave was that this bill is unsuitable. It is not as good as the present system. They are concerned that after the work of the task force went to the bureaucracy, there were many changes. Things have been watered down. What eventually saw the light of day is very different from that in which they were involved. I would like to hear you on that, please.
How do you overcome the feelings of Aboriginal leaders in the south, who are against all of this? As a Parliament, do we pass these bills and impose them on people, even though they are screaming and resisting their adoption?
Mr. Nault: It is not intended to impose Bill C-6 on anyone. It is a choice that will be made in dealing with specific claims. It is a centre where you can access a number of different negotiation tools. If you choose not to use them, senator, you do not have to.
The perception that somehow this is going backward is incorrect. I doubt very much that anyone could argue in detail that we can make it any worse than it is already.
I have said many times that it will take at least 60 years, at the current rate of progress, to resolve the claims that are in the system today.
I doubt that anyone will be able to explain to you in detail how this process will somehow water down that system, simply because there is no independence and no structure for working in partnership vis-à-vis the goals of this proposed legislation. We believe you will see little difference between this bill and the work of the joint task force, except for the administrative structure and the appointments. The difference is negligible. I do not understand the politics of why people are opposing it and I feel strongly that this will make a huge difference.
Otherwise, if I wanted to save the Government of Canada a great deal of money, I would stick with the old system. In that way, we would be guaranteed a slow pace of progress and a small budget and it would stay that way for a number of years. However, the opposite scenario, with this proposed legislation, would fast track specific claims in a fair and equitable manner. That is why the bill has gone forward.
I have brought with me a colleague who was on the task force and who has been involved in this for a long time. I know that one individual on the task force from the AFN has lobbied you heavily. I will have Mr. Winogron, who has a different perspective, tell you about how the task force did its work and some of the issues within it.
Mr. Robert Winogron, Senior Counsel, Indian and Northern Affairs Canada: I was involved in the joint task force from its inception, and to clarify, there was a joint working group many years before that. This issue has been studied for quite a number of years.
Over the two-year period that we looked at this question, we did a great deal of work and had strenuous debates and negotiations over the final recommendations to achieve our goals. It was a productive experience and one of the key features was that, in the end, the recommendations were all negotiated and agreed upon.
We were living in an optimistic world within that task force. Thus, we agreed that we would try to recommend that there be, for example, no cap on the size of claims that were to be entertained. That was the ideal that we all hoped for, but in the end, it did not turn out to be feasible. The features that the minister identified are the key differences, in that it was necessary to have a cap. The appointment process was a policy question that was dealt with differently. The key features of a commission and a tribunal, and the independence that those mechanisms bring, are in this bill. All of the important features of independence and accountability are in this bill. I can only reiterate what the Minister said. We invite you to take a look at the two and see that the important features, apart from the differences that the minister spoke to, are all in the bill.
Senator Sibbeston: I know that the issue of the appointments could be resolved. This is an area in which I am hoping to bring forward an amendment. My staff has reviewed the method of appointments. There are precedents in government for appointments made by the Governor in Council on a recommendation. In most cases, it is on the recommendation of a minister in consultation with the affected body. However, there are a number of instances where recommendations have been made by boards. Those go forward and the Governor in Council makes the appointments. There are precedents for the minister to consult and be influenced by boards. Would you, Mr. Nault, be receptive to making some changes in the bill? In senate committees, we look at improving proposed legislation where possible. I have pinpointed four areas that I think could be improved and one is the method of appointment. I appreciate that the matter has been raised in the other place.
Could you see improving this part of the bill without necessarily giving up any of the tribunal's independence? In this case, as I have said in committee, Aboriginal peoples are not in a strong position; the federal government does everything as long as it deals with claims of native people. The federal government is ``big'' in the sense that they have all the money, the power to appoint whom they choose and the power to make the decisions. While it is working toward an independent tribunal, the federal government still wields most of the power and influence in this respect.
In the matter of appointments, could the federal government not give a little by agreeing to a consultation mechanism with First Nations? That would, to a certain extent, satisfy First Nations.
Mr. Nault: Senator, you put me in a difficult position because the decision is not mine; it rests with a process that has been longstanding — the prerogative of the Prime Minister's Office. You asked me whether I have an interest in moving forward with a process that includes more involvement by our partners, and the answer is yes. That is why I presented the letter to the national chief suggesting that we would be willing to work with him, his executive and his colleagues, to determine whether there was a way to jointly present a nomination list to the Prime Minister's Office.
I do not have any difficulty with that. As I said, you have put me in a difficult spot because I do not know whether I would be able to, depending on what your amendment said, get anyone in the other place to agree with it. I can only say that I am interested in finding ways to work with the leadership so that the right people are appointed. As I said to honourable senators before, our only interest is to resolve claims at a much quicker pace. That is the only reason that this bill is before you.
If it does not work, if there is no respect for the commissioners and the adjudicators and it falls apart, then we will have failed. If we fail, then the Government of Canada will find a way to work around it. If it fails because it does not work, the First Nations and their representative lawyers will find a way to work around it. Yes, there is a need to make it effective and efficient. ``Effective'' applies to the process of trust and ``efficient'' applies to the whole issue of ensuring administratively that we remain compliant with the Financial Administration Act and the budget. As my colleague has said, in a perfect world, the bill might look a little different. However, we all know that we do not live in a perfect world. Thus, I give you that answer to a difficult question, although it might seem to be an easy question. I am not the only player when we present a bill.
As an ex-premier, Senator Sibbeston, you would know that there are many players around the table when we look at initiatives and how they end up. I do not think it is appropriate for the minister to speak of the internal matters within the process of getting to where we are, except to say that I really do want this proposed legislation to be effective.
Senator Sibbeston: I have one last comment. It is not a big issue to amend this to say that, ``the minister shall appoint in consultation.'' It leaves the prerogative with the Governor in Council. However, it is a kind of window-dressing, in a sense, and it may find favour with the First Nations if they recognize that they are being consulted.
I appreciate that you have said it as informally as you could by writing a letter, but adding to the proposed legislation, ``in consultation,'' as an example, would go a long way to allay some of the opposition to the bill. That is the sort of thing I had in mind.
Senator Christensen: Madam Chairman, I will keep my questions and comments brief. The two issues that I wished to bring forward, the task force of 1998 and the cap, have been put before us.
The paternal nature of the Indian Act creates a sort of love-hate relationship. It is a difficult thing. I know that the minister has been dealing with it for quite a while. We do not want to see the Indian Act continue. Yet at the same time, some want to hang on to it because it has an assurance and certainty to it that other things do not.
Those of us such as Senator Sibbeston and I, who have been in areas where there have been land claim negotiations underway for a long time, see this sort of turmoil when something new is being put forward because of the uncertainties. The leaders do not like to go forward with uncertainties. We are seeing a natural and human reaction.
I see the package that is coming forward as freeing First Nations to be able to make decisions and from some of the restrictions of the Indian Act. This proposed legislation will allow them to make decisions for themselves on how they want to see things develop.
You mentioned options other than the claims process that this proposed legislation is addressing. For the record, could you outline some of the options that are available if they do not wish to follow this system?
Mr. Nault: My understanding is that we have a legal obligation to ask First Nations which process they would prefer for claims that are already in the system. There are roughly 600. We cannot yank those claims out of one system and send them to the new centre. The First Nation has to make that choice. Obviously, the other choice is to litigate, and this process does not take that away. This is considered one of a number of tools to add to the arsenal in trying to improve our ability to move forward more quickly.
If the proposed legislation were passed, we would send a letter to every Aboriginal community with a claim, or a series of claims, asking, ``What is your preference? Do you want to stay in the present system?'' Legally, we have to ask that question. They would have the choice of working with the commission, with the hope that it will improve our ability to be successful where we have not been up to now. The wording of the letter would be in legal terms, of course. That is the present requirement.
We would then encourage, if the commission and tribunal were successful, new claims to go into that process. That is the objective of the exercise.
We will have two processes for a number of years — the present one or the commission one. Everyone seems to think the current system is better than the one in this bill. I very much disagree with that, but that has been people's opinion when they came before you.
Senator Christensen: We have heard much about the cap. You have explained that the $7 million is there because the board is autonomous and independent and there has to be some limit on its ability to spend. That does not limit the board from hearing and dealing with the claims over that amount, but they would have to get special funding approval. Is that correct?
Mr. Nault: Parties have to ask to go before the tribunal. A claim goes to the commission. The commission negotiates. It goes to the tribunal based on the parties' interest in resolving it. They can go so far as to ask for binding arbitration, and it can be dealt with that way.
It will only go to the tribunal if the First Nation says that the claim is less than $7 million.
Senator Christensen: What if the claim is over $7 million?
Mr. Nault: If it is over that, it will have to be negotiated outside that process.
We had quite a debate internally about this $7-million cap. My colleagues smile because it has been quite a little battle. I have suggested that the cap be put into the regulations and not the bill. It will be in the regulations because we are interested in increasing it if it is proven to be restricting the success and efficiency of the tribunal.
We would want to be able to argue three years from now that the cap should be $15 million, for example. We would want to prove that we could stay within the financial administration structure and budget that we have set up for the tribunal and the commission centre.
The three- and five-year review is important because we will only know then how often the tribunal is used. There are many who give me advice who say that the tribunal will not be used very often. It will be a place of last resort because going there would remove many powers within the courts. You go there with the objective of getting a final resolution from those adjudicators outside the courts.
It is not a simple matter for a First Nation to articulate that to their community and to get acceptance to do that. You set that final result aside, except for an appeal of certain matters through the courts.
Senator Christensen: There is a cap of $7 million in the tribunal process stream?
Mr. Nault: Yes.
Senator Austin: As the committee knows, I am the sponsor of this bill. I have already spoken in the Senate in support of it.
I would like to examine some of the operating questions to test the efficacy of what has been presented in Bill C-6. Mr. Pangowish mentioned one of the key issues in his evidence here last week. Is the process under Bill C-6 designed to create incentives to reach a settlement?
I will ask two questions. Will there be sufficient funding and a sufficient group of people to expedite the claim process?
Second, how does Bill C-6 expedite the time frame for the work of the commission to accelerate the settlement process?
Mr. Nault: I may need Mr. Winogron to help me with your second question.
With regard to your first question about the funding, senator, we have had this discussion on many occasions with the working group, the task force, and with those still working on the file together. We have had a number of meetings as this bill has been progressing through both Houses. We believe that there will be enough resources and enough flexibility for the commission and the CEO to allocate the resources necessary, for example, for research and consultation on claims.
Our biggest issue is the acceptance of a claim, which we have shortened by placing in the bill language that suggests that within a certain period of time — I think it is six months — the minister must indicate acceptance of the claim. If the claim is not accepted, an explanation of the hold-up must be given. Whereas currently, our average timeline is about seven years before we make a decision on whether we will accept a claim. There is now a way to move the government at a quicker pace. That decision on acceptance will be more efficient because timelines will be given for our department and the justice department to articulate a position on a claim.
That is one of the frustrations I have as minister. I write letters on a regular basis to my colleagues at the Department of Justice asking, ``Where is this claim and when are you going to give us advice?'' They will argue that they do not have a large enough budget, their lawyers rotate too often, they have no one on the file — all sorts of great and archaic excuses as to why things do not move quicker. However, the process has been set up and, we believe, the financial resources necessary to deal with the claims more expeditiously.
The second issue is that, with all due respect, we are looking to create a centre of excellence in the claims area. Then the people who work for the centre and the adjudicators will become more conversant with claims of a similar nature, so we do not have to reinvent the wheel every time we get a claim. The adjudicators and the commissioners will have a good sense of what a particular claim is worth, and we can argue that much quicker, both internally within the Government of Canada and with our colleagues. That is why we think it will go faster.
On the issue of time frames, I want Mr. Winogron to give you the specific wording and arguments that we put forward to make that more efficient.
Mr. Winogron: In the current process, when a claim is submitted, one of the reasons it takes so long is that there is no formal structure to deal with it. The claim comes in either complete or incomplete. It takes a lot of time, in some instances, to make it complete, simply to do the research.
A claimant First Nation brings the claim in. They have done some research, but perhaps more is needed as the discussion continues; and then the government conducts its own confirming research. That process takes a long time.
Once that claim is complete, the file is brought to the Department of Justice for a legal opinion. That file is then placed into the queue, along with the other files with which the Department of Justice deals. That alone takes a long time because there are more files than lawyers. Therefore, the process is a lengthy one.
There is a series of internal reviews that the opinion needs to go through. The opinion is sent back to the department and communicated to the claimant — either an acceptance or a rejection — and the process then continues. If it is a rejection, the claimant has the option to go to the Indian Claims Commission for a review; and if it is accepted, it moves on to the negotiation stage.
With this bill, we have tried to shorten each of those steps. Claims will be dealt with on the basis of validity — are they valid or not, and if so, what is the compensation? There are improvements in the process in both these areas.
At the validity stage, the way the process will operate is that we will have joint research meetings. Claimants and government get together right away, discuss what is necessary and do joint research. Pilot projects have shown that this increases efficiency in terms of both time and costs because work is not being duplicated.
The tribunal, in an interlocutory way, will be able to determine whether a claim fits within the definition of a ``specific claim.'' We currently spend a lot of time debating back and forth with the Indian Claims Commission and claimants themselves to determine whether a claim that has been submitted is actually a specific claim. That takes up a lot of time and resources.
Unlike the current Indian Claims Commission, the tribunal will have the authority to issue final decisions that cannot be appealed and are subject only to judicial review. There will not be the extended process of going to the Indian Claims Commission to get a second opinion.
On the validity side, that will be a considerable increase in terms of time and cost. On the compensation side, we will have the mediation or facilitation functions of the commission to keep the parties on track to determine, or to at least attempt to agree on, what a claim is worth.
Currently, we have lawyers for the claimants and for Canada arguing almost incessantly over what a claim is worth. These negotiations frequently extend over many years. With the assistance of the commission and their mediation and arbitration services, we will be able to cut down on the time it takes to reach agreement on valuation.
Finally, on compensation, we will have the opportunity — when claims are $7 million or under — to have a final decision that all parties can live with, no matter what that decision is. It will not be subject to a second look by the Indian Claims Commission. Of course, this entire system is optional, but all parties going into the process know that, at the end, if you are at the tribunal and you are asking either a question of validity or compensation, you will have a final decision. All these tools are designed to stay on the commission side to negotiate efficiently and effectively.
Senator Austin: Let me come to two aspects of your answer. The first is that there is a certain time to determine whether the claim has a prima facie validity and should be negotiated. What is that time frame again?
Mr. Winogron: I did not say there is a time frame to do that. I said that the tribunal can decide finally, if the claim is $7 million or under, whether it is valid or not.
Senator Austin: Go back to the beginning of the commission process. A claimant comes in and asks for the support of the commission for research and research development. What I am looking for, essentially, is the incentive for the two parties to move this process expeditiously.
We have an enormous number of claims. I assume that this process will generate more. The questions that concern me are not questions of great principle, because I tend to be comfortable there, but the efficacy, the implementation of this process. Are there enough people and is there adequate funding and a timeline that requires the government to move this process forward?
If the claimant resists, that equity is on the side of the claim. If they do not want to conclude the process, they do not need to. However, what is the obligation of government to act in a timely and efficient way?
Mr. Winogron: There is a mechanism built into the commission process that provides that the minister must examine, and make a decision on whether or not he will negotiate, the claim. There is no specific timeline for that, although there is a provision that the minister must report every six months on the progress of his consideration. If more time is required, he must give reasons why. It will be a public statement to explain what stage the process is at and, if more time is required, why that is the case.
Senator Austin: What do you say to the argument of Mr. Schwartz that, under the present process, the commission can review the validity of the rejection of the minister, but under Bill C-6, the commission will not have that authority?
Mr. Nault: Are you talking about the present commission?
Senator Austin: The present commission, according to Mr. Schwartz, can review a rejection of the validity of the claim. His argument is that this is being taken away from future claimants, people who have not filed under the existing legislation.
When Bill C-6 is proclaimed, the new commission will not have the opportunity to opine when the minister has decided that there is no validity. Would you comment on that point?
Mr. Winogron: I know Mr. Schwartz and we have dealt with this matter for a long time. I would say that it is clear. The bill contains an empowering provision that allows the commission to opine on a decision not to negotiate a claim — there is nothing in the bill that prevents them from doing that. That provision also allows the commission to do much more. Once the minister has decided that he does not want to negotiate a claim, the dispute process begins. Thus, the commission is involved at an early stage, but once the minister makes that decision, the commission's work is in place to try to resolve that with all of the tools available to it. In the end, there is provision for the commission to do a whole range of things. Nothing prevents the commission from reporting on the state of the matter. In addition to that, the claimant then has the option of going before the tribunal. Therefore, when Mr. Schwartz says that the claimant is worse off in this scenario, I do not believe that. I see that the commission has the power to report and to assist in the negotiation, and then the claimant has the opportunity to go before the tribunal.
I should add, perhaps, that there has been a longstanding complaint about this perceived conflict of interest. Certainly, the commission and the tribunal would alleviate that because it would be an independent body. When the minister says he will not negotiate the claim and the tribunal says that it is a valid claim, the tribunal has the last word. That is impartiality. Thus, the claimant would be in a much better position.
Senator Austin: I do not have concerns about the role of the tribunal but rather about the role of the commission. Does it have the same authority to opine that the minister has wrongly rejected the claim on the basis of validity? Does it have that same authority as the Indian Claims Commission has demonstrated with respect to the Saskatchewan claim?
Mr. Winogron: It does not have the same authority. The current commission is empowered under the Inquiries Act to hold a public inquiry. It does not have the authority of the Inquiries Act, but nothing in this proposed legislation prevents the commission from opining in any way that it sees fit and that it is empowered to do on the merits of the claim.
Senator Austin: Would you expect, from time to time in some cases, that the commission would advise the public that a claim rejected by the minister was wrongly rejected and ought to be negotiated?
Mr. Winogron: I do not know what my expectations are.
Senator Austin: You said that there would be nothing to prevent the commission from doing what I have just said.
Mr. Winogron: That is right. There is nothing in the bill that would prevent the commission from doing that.
Senator Chaput: Minister Nault, when I listened to your presentation on such a complex issue, I was impressed by the way in which you provided such clear explanations. Even I am able to understand what Bill C-6 is about. It demonstrates that you have a clear vision and that you know what should be done and how it should be done. I want to believe that the bill is good and that it will free First Nations to get on with their lives. However, as you are aware, the Assembly of First Nations is not in favour of Bill C-6 in its current form.
We have heard from some leaders who have been quite vocal about their concerns. Unfortunately, their arguments, although quite strong, were unclear. I was unable to understand the reasons for their opposition, what they wanted, what they approved and what they did not approve. They want a commission and they want the tribunal, but they spoke positively of the task force and not as positively to the work that was done after the task force.
Having said that, I am aware that it is an emotional issue, which makes it difficult to argue rationally with the opponents of the bill. Their perception of what the proposed legislation will or will not do is so far from the reality that you have explained to us that I am disturbed. Having said that, Minister Nault, it worries me that passing this bill with so many against it will create a great backlash. What would that backlash be? What would we all be facing as a result? Is there some way that we can bring more of the opponents around to your way of thinking before the bill is passed?
Mr. Nault: I want to remind senators that when the Conservative government established the Indian commission, the Assembly of First Nations also opposed it. I can list a number of bills that have come before you that we passed and that were opposed because of concerns about whether we could be trusted to do the right thing. They are now largely supported across the nation, including the Indian commission legislation. That is a fact. The commission was an interim measure under the Inquiries Act and was intended to be in place until we achieved a permanent fixture. Now, people are saying that they like it and that it should stay. I am surprised because it has no teeth — it can only recommend and cannot force the minister to do anything. The proposed commission has more strength and independence to move the government toward resolution of these claims. That is the importance of the tribunal.
I cannot answer the political question for you concerning those who have a view that the legislation has to be written by the Assembly of First Nations, AFN, and transmitted to Parliament. As you know, that system is not acceptable to government. Our governmental obligation is to write the legislation based on recommendations given to us by the task force. Mr. Winogron succinctly explained to you just how that was done. We believe that the lion's share of the bill meets the recommendations within the parameters that we face in a real world of financial issues and that it will go a long way toward improving things.
If we do not pass this bill, we stay with the present system, as it is constituted. If I did not believe in this bill I would not be sitting before you today. I strongly recommend that you pass Bill C-6 and do what we have done in the past — prove that the system and the legislation will have a positive impact. That seems to be the only way to move forward within the political structure as it is presented to us through the different regional groups of Aboriginal leaders across the country that, depending on where you are, have differences of opinion.
For example, Bill C-19, which will come before you, is, for all intents and purposes, totally supported except by one group in British Columbia. The majority of chiefs in British Columbia are writing me letters in support of Bill C-19 because they had a big role to play in developing it. As well, you will find when you talk to chiefs that they are prepared to look at Bill C-6, and if it proves to be successful, they will recommend to their people that they put that claim into the process. However, I cannot give you assurances here until we have had an opportunity to let it work. My only interest in convincing you of our positive intentions toward Aboriginal people is that we will have a review in three to five years, with the objective of allowing us to reflect on what we have done and the successes or failures that we may have had.
Senator Léger: As far as I can understand, the emphasis here is put on a quicker pace versus the ``Aboriginal pace,'' let us say, or now, versus the 60 years. We are touching on culture here.
I feel that everything is going too fast, and we are jumping around these days. The other pace, sixty years, is definitely too long. Is it possible to do the same thing at that pace? I am trying to respect the culture. Everything the government is saying about the betterment of the country, of the Aboriginals, is the same as the Aboriginals are saying.
I know that we are establishing a third order of government, as you were saying. It is the role of the government now to decide. Could it be made to sound less like the government saying, ``We are the government and we have to make a decision. We will prove within three or five years that it has worked''?
I find the terms very forceful and authoritative, and perhaps we need that. However, is it possible that it originate more from the Aboriginals?
Mr. Nault: I believe that this has. That is the point I was making earlier. If you put the task force recommendations side by side with this bill, you will see very little difference, except for the financial side, the cap, and as Senator Sibbeston has said, the appointments. There is virtually no difference.
If the appointments were good, it would resolve our concern. We would have qualified, capable individuals as commissioners and adjudicators. We will assume, for the sake of argument, that with the recommendations of Aboriginal people, we are capable of doing that, as we have been in the past. I do not have the same concern as others about that. There are many qualified people out there.
The cap, as we said before, is in the tribunal area. That is an area of last resort. It is supposed to be the commission that has the lion's share of the work in this centre. We believe the commission will be the area where we will make the improvements in arriving at an agreement faster. Also, quite frankly, because of the arm's-length approach of the centre, there will be a lot of pressure on the minister when he or she decides to not accept a claim.
When the Indian commission makes recommendations presently, there is no pressure on the minister to approve and start negotiations. Reports on the commission would show that we have not been successful in convincing governments to take the recommendations and move them forward. This is intended to be at arm's length and more transparent. Hopefully, as a result, it will be more trusted.
You talk about the issue of culture. These are legal obligations. When you accept a claim, you accept legal responsibility for wrongdoing of sorts based on our fiduciary obligation through the Indian Act, a treaty or some other act. This is very much a legal process. We could decide not to have any negotiations and have everything go through the courts if we did not believe it was to our benefit as a society to have a process like this.
Therefore, for the sake of this discussion, it is not necessary to think so much about the culture, other than the fact that Aboriginal people, like all Canadians, believe in sitting down around a negotiating table and figuring out a way to proceed. We believe that we have done that in this case.
Senator Léger: Is the joint task force still operating or is it finished?
Mr. Nault: It is concluded. It has made recommendations. There is a working group that meets from time to time to talk about this bill from the perspective of next steps, if it passes. We believe the bill will pass, and it will be implemented. We are starting to talk about implementation.
That may be a little premature, but we must talk about it. We are talking with the AFN about implementation from the technician's point of view. We must move forward, even though we do not agree on everything. We believe that there will be a large take-up by First Nations claimants when this bill passes. I say that as an educated prediction based on the discussions that we are having.
As well, we have asked the Indian Claims Commission to participate in the discussions. As you know, we will wind down that commission and transfer some of its staff and functions. We will have to make a decision about the present commissioners and their role. All that is in discussion now, with the objective of moving forward from a positive, firm footing once the decision has been made in the Senate to pass this bill.
Senator Léger: I would like to see a debate by the task force. I heard the opposite last week. Everything was out. Maybe the two sides of the argument from the task force could be heard.
Senator Stratton: I want to go back to the reason for such disagreement over the bill. You have said that you listened to the task force and incorporated virtually all the recommendations, with the exception of two.
You tried to identify the reason for such objections. What are we talking about here? Is this an issue of sovereignty for the AFN or the First Nations? Do they want you to be talking to them as a sovereign nation? Is this their objection? That was discussed. It disturbs me, what they mean by that.
We asked the questions: ``Are you a sovereign nation within Canada? Are you a Cree first and then a Canadian? What is your definition?'' Is that the basis of the objection? I am still trying to find that out.
Mr. Nault: Based on my experience over the last 15 years, the position of the AFN is that no bill will go forward unless it is consented to and written by them. If that position has changed, I am not aware of it.
I have been given some authority by cabinet to allow for the first drafting of legislation — C-7 was one example — with the help of Aboriginal people while maintaining our obligations under the Cabinet Secrecy Act in the final draft, which, of course, we have concluded.
You ask if we will ever be able to sit down and arrive at a settlement. As I have said before, not in this place but in others, I am a strong supporter of the inherent right to self-government. I want to move toward that third order of government. However, I believe that is part of our constitutional family. If others believe that their governments are sovereign within Canada, then I do not accept that, nor do I have a mandate to negotiate it, nor will we get very far with that in any government.
The proof is that we have had only one substantive self-government agreement in my political career. In 15 years, we have only had one. It has been a difficult process for all of us.
Politically speaking, I have attempted on many occasions to get the AFN national chief and his executive to accept a joint process for consultation. You can check for yourself — the national chief ran on a platform of not being so close to the government, of opposing the government. If that is the scenario that has been chosen, I cannot change the dynamics on the ground. I certainly have sent the message on many occasions that this minister and this government want to work with Aboriginal people, within the mandate that we have.
I cannot give you any other answer than that. You would have to ask those questions directly. I can refer you to The Globe and Mail of yesterday, where the national chief was reported to have said, ``We are sovereign.'' You might want to get a definition of ``sovereign.'' I do not know what it means, unless people want to articulate it more precisely; nor do I know what ``colonialism'' means, except it is used in a flippant manner on a regular basis. That is unfortunate, because we all, in the end, have to start moving on some good institutional structures to improve the lives of Aboriginal people. It is true that when you go to the communities, you think you are in a different country. The only interest I have is to see their success.
I understand I have a vote in about two minutes. Madam Chair, without getting myself into more trouble than I am already in, I wanted to take this opportunity to take my leave. However, I will leave my colleagues, if you wish, so that you can continue. I wish you all the very best in this important work, a piece of proposed legislation that I am highly committed to and believe will make a big difference in our work with Aboriginal people.
The Chairman: Thank you very much. I appreciate it. I appreciate your technicians remaining. There are just a couple more questions.
Mr. Nault: They are probably better at answering them than I am.
The Chairman: Thank you very much, Mr. Minister.
Senator Sibbeston: Chairman, I want to say that among Aboriginal people, there is great suspicion of the bureaucracy in Indian and Northern Affairs Canada. Whether you like it or not, that is the reality. What I am concerned about is that the minister raised this point about sovereignty. I have to say that this issue of sovereignty was never raised by any of the AFN witnesses. To me, this is a red herring. It is not even on the table. It is an attempt to mislead us in some way.
I have to pay respect and say that I was very impressed with the AFN representatives. The story they tell is of the AFN participating with the federal government in a joint effort over two years. Once the task force was finished in 1998, the material went into the department. They said they did not have a chance to have input into this proposed legislation. This bill saw the light of day without their involvement. This is what concerns the AFN leadership.
I think the government was right to involve them in the discussions and in the task force; but once the work was done, it went into your hands — the bureaucracy — and you messed it up. That is my general impression. You had control of it, and in your bureaucratic way, somehow or other ensured that Aboriginal people were not going to succeed.
That is the story and that is the image of bureaucracy. Generally, the bureaucracy is against the native people. That is the way that native people see it. I am sorry if you do not like it, but that is the reality.
We have a problem with this proposed legislation in the sense that it does not have the support of the AFN. The technicians — Rolland Pangowish and their lawyer, Brian Schwartz — were very disappointed with this bill. We have a political situation now where it seems there are many Aboriginal people across the country opposed to this bill, yet the government is hell bent on passing it.
The government is big. Native people are little. That is the history of native people in our country, is it not — maltreatment, et cetera, and being dealt with unjustly? Now things are changing somewhat; things are improving. However, there always seems to be something that gets in the way of doing things properly.
There are exceptional instances — the Yukon and the Northwest Territories — where the government does well. In the south, for some reason, the government's handling of Aboriginal issues does not seem to be very good.
What happened once it got into the system? What did you do that this bill is so vehemently opposed by the First Nations?
Mr. Gilles Binda, Senior Policy Advisor, Indian and Northern Affairs Canada: I have to admit the task force report was after I came on to the file. However, when I came on, the first thing I had in my hands was the task force report — meetings that were going to take place. The task force report came out in 1998, and there was much analysis done through the government. It went in to government at higher levels — much higher than I — and, as Mr. Winogron pointed out, there were things in there that were wishful thinking, such as no cap on the tribunal.
Senator Sibbeston: However, this is a process in which the federal government was involved.
The Chairman: Let the witness respond, senator.
Mr. Binda: Yes, it was First Nations and government working together. However, it was a set of recommendations that they worked on. People at senior levels looked at those recommendations. Because of the financial situation in Canada, the government has to be responsible to taxpayers, et cetera, so they looked at this and wanted to put together a body that would be working within a manageable fiscal framework.
Let us take the example of no cap; nobody knows how much money would be spent. You could not put it within a fixed budget. All of a sudden, you could have big decisions being taken involving large amounts of money that would be way above what is available to be spent.
When that came through, the senior level said, ``Let us go back to the table.''
The Chairman: Who is the senior level? In what department?
Mr. Binda: ``Senior levels'' meaning our department at the top level and top level within government.
They came back and said, ``Go back to the table and talk with First Nations about something a little different.'' This is where we introduced the idea of a cap. We also introduced the idea of changing the appointments process a little because, again, senior levels told us that that process has been set in government for a long time. Governor in Council appointments are made in this way.
We had numerous discussions and presentations involving our assistant deputy minister, ADM, across the country. We also contracted Chief Ed John from B.C. to travel across Canada. He held close to 30 meetings in many provinces with different groups and reported his findings when he returned. Again, there were problems. Everybody agreed with the AFN and there was talk about the cap and the appointments process, et cetera, but at the grassroots level, there was support for creating this because they saw it as an improvement on the status quo — having a tribunal that could actually make decisions binding on the Government of Canada, even if the minister did not initially agree that it was a valid claim. If the tribunal said that it was a valid claim, the government would have to live with that decision and negotiate that claim.
We have had many discussions with First Nations post the joint task force. Mr. Schwartz, Mr. Pangowish and their technicians have been at the table. The minister pointed out that creating a tribunal and a commission would facilitate greater transparency and independence and would transfer $14 million, which the Department of Indian Affairs and Northern Development, DIAND, now manages for the support of First Nations' participation through research, negotiation, loan funding and grant funding, out of the department into this new commission. We are trying to create a body that would be at greater arm's length from the government. Mr. Schwartz and Mr. Pangowish said that there was a perceived conflict of interest because Canada was funding First Nations, controlling that amount for their research, then deciding whether a claim was valid and determining how the compensation criteria would be negotiated. With Bill C-6, many of these items would be taken over by the commission and the minister would not have as much control.
Senator Sibbeston: I have to respond by saying that in the task force report's recommendations, I recognize no cap on individual claims, but there was a five-year formula. It was not a case of them recommending a limitless fund for the claim process. You have to admit that their proposal is reasonable, to a certain extent, in the sense that there was a formula for five-year funding.
I also want to say that when the federal government undertook to create a task force, they ought to have given it sufficient authority that the participants would know that it was a meaningful and worthwhile process and that what they recommended would have a chance to be implemented or agreed to by the federal government. You said that once it went to the upper levels, it was changed. To me, it is just as if the AFN and Aboriginal people were fooled into believing that their participation was worthwhile and would be effective.
In your opinion, what would be the sense of making recommendations if, at the higher levels of government, there is no agreement? It would not be considered a serious undertaking. If what you say is true, then I think the AFN was deceived. Perhaps that is part of the reason for the opposition — it is an emotional response to the bill because they were involved in a serious undertaking, in good faith, only to find that in the end, the federal government did not agree with some significant points in their recommendations.
It ought to be a lesson for the federal government: If the government is to involve First Nations in any process, it must be a serious undertaking. The AFN has to recognize that what they recommend has a chance of being implemented. Otherwise, no one will participate with you again. You are not serious, because you ask for participation and then you do not abide by the recommendations. What is the sense in that?
Mr. Binda: Point taken, senator. When the JTF people were at the table — the First Nations and Canada — it was never thought that what they produced would be created. They were asked to provide recommendations on the creation of an independent claims body. Those recommendations were considered and most of them appear in this bill. There are a few that do not. That is similar to most bills — reports are done, many things are recommended, they are all considered and decisions are taken. That is how we arrived at Bill C-6. As the minister pointed out, there are only two big differences between the joint task force report and the bill: the cap and the appointments process.
Senator Stratton: We talked about the task force recommendations. Is there a summary of those in point form so that we could readily understand them? I have not read them as yet, and it would be simple enough to have an overview of the recommendations from the department to show us what was agreed to, what was not agreed to and the reasons why. In that way, everyone around this table would clearly understand. We keep coming back to this and I believe that it could be done. Hopefully, that would help to clear up much of this.
When we met with the AFN, they talked about sovereignty and said that the issue was not to be dismissed as irrelevant because it was important. For the record, that should be said. I would ask you to consider that, and perhaps by so doing, you would clear up many of the misperceptions or misunderstandings about the efforts of the task force. I would like to see that overview from you.
The Chairman: As of yesterday, I have a new staff member in my office who is working on exactly that.
Senator Stratton: I would like to see the information.
The Chairman: It would be beneficial to compare the task force recommendations and the bill.
Senator Stratton: If we get that presentation from the department, then we would see the differences, which departmental officials could then explain. We need to know that.
Senator Watt: I have many questions that I would like to ask but I will limit myself to three areas. First, I think it would be fair to ask the people who were involved in the consultation how it took place, especially in respect of the timing. How much time did the department give to its explanations to the people at the community level, who had no knowledge of the legal aspects and the way in which government works?
My second question is along the lines of a recommendation. The joint task force was discussed this morning, and it seems one person says one thing and another says something else. In a sense, we are calling each other ``liars,'' if I may be blunt. I do not think it is fair. I would like to see Aboriginal people be given a reasonable opportunity to clearly explain their point of view. Perhaps this is where the Government of Canada could come into the process and lay on the table the work of the joint task force, not only a summary, but the entire text.
In that way, we can compare the two approaches— that of the joint task force and that taken eventually by the government. We could have it on the table and see it in black and white. That is important.
My next point was raised by the Minister of Indian Affairs. I remember that not too long ago, the minister said that he does not know too much about the inherent right to self-government. Therefore, for that reason, he was not touching upon it. He has now become a believer in the inherent right to self-government and a third order of government.
I return to the question asked by Senator Austin. What is the incentive for the Aboriginal people? You must make the intention of the government to move in the direction of a third order of government absolutely clear to the Aboriginal people. Do you see anywhere in the three pieces of proposed legislation a statement that this is the first step and that there are a few steps to be taken later?
Mr. Binda: I will try to answer your questions, senator.
Your first question was in regard to how much time was spent on consultation. There was a working group set up in 1990, and there was a task force in 1996. Those were two big groups that looked at this. In 2000, 2001 and 2002, we had meetings with the AFN to discuss how an adapted or modified model of this bill might look. We had many discussions with AFN technicians at the table and AFN leaders came to the meetings. Former Chief Mercredi talked to us.
Senator Watt: You mean to say that this was anticipated before the report was presented to the government?
Mr. Binda: No. The report was tabled in 1998. After that, there was a year of looking at how we could adapt and modify it according to recommendations. There were a few recommendations that senior levels could not fit within the system, one of them being no cap on the tribunal.
We then went back to the table. We had meetings in 2000, 2001 and 2002. We had Chief John go across Canada to explain the bill and the federal proposal to the communities. He reported back to the minister.
Senator Watt: How much time was given to the communities?
Mr. Binda: It was done over a long period of time. He also recommended that the communities send their thoughts to the minister in writing. This was done over a period of close to a year. That is as much as I can tell you about the timing.
We worked with the AFN on the modified document. We showed them what we wanted to do. We incorporated many of their recommendations to try to tweak it. We also held consultations.
We talked to the provinces also about how it would affect them. We did much consultation. Ed John said that there was support at the grassroots level. Some of the higher levels were following the AFN position, but the grassroots level was saying that they wanted it. They were saying, ``This will help us get money for our claims and we can use that to better the community. We want to see something that will improve the process.''
Senator Watt: What about the other questions that I raised?
Mr. Binda: The other one was with regards to a comparison between Bill C-6 and the JTF report. The Chair's office is doing a comparison. I will take the comment to my department.
The Chairman: We will then work together.
Senator Watt: Can you table it here at some later date?
The Chairman: It will definitely be tabled, senator.
Senator Watt: It should be tabled by Indian Affairs, not your office.
The Chairman: The department has already committed to tabling it here.
Senator Watt: What about my third question with regard to self-government and a third order of government initiative?
Mr. Winogron: I cannot answer that question, senator. I can tell you about the incentives for claimants in this process related specifically to this bill and why a claimant First Nation community would want to use this process.
First, this is an entirely optional process. A First Nation can choose to use the process or not. The process is funded. The body controls the funding, so it is an independent decision maker both at the preparation stage and, if a claim is accepted, at the negotiation stage.
A large incentive is also that the tribunal has been instructed not to consider any time limitation where a claim might be longstanding because it was stalled. Neither the doctrine of latches in the common law nor any limitations act is taken into account when deciding on the validity of a claim.
As you know, many cases in litigation before the courts are stalled and then rejected because too much time has passed. That defence is not available to the federal government, or provincial governments, if they return to the jurisdiction.
That is a large incentive. The funding is a large incentive. It being an optional process is an incentive. The fact that there are no time-related defences is a large incentive for claimants to use this process.
Senator Watt: When you opt into this process, is it not true you lose your ability to go to an inquiry? In other words, the minute you opt into the process you are locked in.
Mr. Winogron: That is not correct.
Senator Watt: You cannot use any other available tools because you have slipped into that process. Is that not correct?
Mr. Winogron: First, that is not correct. A claimant is entitled to withdraw a claim at any point in the process up until the time of decision. Your options are only closed once the tribunal makes a decision.
Senator Watt: When they do that, they can only opt to go to court, right?
Mr. Winogron: Yes.
Second, I think that you are referring to the current Indian Claims Commission. That commission, as the minister stated earlier, will be decommissioned once this body is up and running. That option will not be available to a claimant. That is correct.
The Chairman: I have one last question. It is with regard to the binding arbitration issue. All parties must agree to the binding arbitration. If the First Nation wants binding arbitration and the government does not agree, what happens?
Mr. Winogron: We would not have binding arbitration.
The Chairman: What other option is there?
Mr. Winogron: They can then proceed to the tribunal if the claim fits the criteria for going to the tribunal.
I should mention briefly that binding arbitration was one of the features we debated strenuously over a long period of time during the JTF years. The benefit of having that particular provision is that binding arbitration can be tailored. If the parties agree, we can eliminate some or all of the parameters that are currently in the process. The $7 million and all the other parameters that we have can always be negotiated out.
That is to be used, of course, in exceptional circumstances, because we have the process in place. However, if a situation arises that calls for that very limited, tailored approach, then that is available to the parties as well.
The Chairman: I think we have limited time, so I am sure you will be asked back for further discussion. I would like to thank you both very much for staying past the minister's allotted time to at least begin a really good discussion.
The committee adjourned.