Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 7 - Evidence - Meeting of October 4, 2006
OTTAWA, Wednesday, October 4, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 6:26 p.m. to examine and report on the nature and status of the Government of Canada's specific claims policy.
Senator Gerry St. Germain (Chairman) in the chair.
[English]
The Chairman: It is my pleasure to welcome you to the Standing Senate Committee on Aboriginal Peoples. I am from British Columbia and I am the chair of the committee.
We continue our special study today on specific claims. The committee intends to examine the federal specific claims process with a view to making recommendations to contribute to the timely and satisfactory resolution of First Nations grievances in that matter.
Today, we will hear from four seasoned legal practitioners with extensive experience in the specific claims field. We hope they will help us better understand the challenges of specific claims, the process and make recommendations to fix the problem.
Before us the first panel that we have is Mr. Jerome Slavik, legal counsel for the validation, negotiation and settlement of 15 treaty entitlement and specific claims in Western Canada. He is a faculty leader for the program on Crown First Nation negotiations offered by the Aboriginal leadership program at the Banff Centre.
Mr. Ron Maurice is a Cree-Metis lawyer whose firm represents several First Nations and the Métis Settlements Appeal Tribunal. In 2003, he successfully settled a specific claim relating to the unlawful taking of reserve land. Prior to entering private practice, he was commission counsel to the Indian Claims Commission.
My Senate colleagues will have the opportunity to ask you some pertinent questions that we hope will lead to final recommendations that can make a difference in the lives of our Aboriginal peoples.
Jerome Slavik, Partner, Ackroyd LLP: First, I would like to thank the senators for this invitation to address this committee and what I consider to be an exceptionally important piece of work that you are doing. My professional career in the area of law for the past 20 years has specialized in the area of specific claims. It has been both a professional and personal passion and a source of great frustration.
I want to speak briefly to the highlights of the report that I have tabled with you today.
The claims policy has been in place now for 23 years. Based on my experience and knowledge, the operational, structural and policy problems that currently plague the specific claim process have been with it from the start. These are endemic problems requiring transformational and fundamental change. These problems cannot be fixed by tinkering around the edge. The problems are too large and too ingrained and have huge consequences that must be addressed.
I will not speak at length about the problems with the process. The numbers speak for themselves, and I would refer you, in particular, to appendix 2 of my report, which is correspondence from the Specific Claims Branch, SCB. This was updated with recent information I received from them which shows the level of claim settlements and acceptance and rejections.
My own quick analysis is that with the eight lawyers presently assigned to validate or reject specific claims, at an average of four months a claim — I am using Ms. Stewart's, Director General of the Specific Claims Branch, data — it would take them 13.5 years to reach decisions with the 309 claims on their desk right now. This is not counting the 622 claims that are currently under research and the hundreds of other claims out there that are to be filed.
Using Ms. Stewart's numbers, the outstanding contingent liability in 2005 dollars is estimated to be a minimum of $6 billion. My estimate — and I believe people knowledgeable in the area would concur — is that it could be at least double that figure.
At the current settlement budget rate within the Specific Claims Branch, which is $75 million per year, it would take approximately 90 years to provide settlements in the event that 70 per cent of those claims were validated. In other words, we are on a track that would put the settlement of claims well beyond many of our lifetimes and those of our children.
This situation has persisted for years; this is not new. The Royal Commission examined this, as have countless other task forces and independent bodies. Why has this problem persisted? This is where I would ask honourable senators to focus their concern.
In my view, there are two primary reasons for the persistence of the problem. One is the mandate of the policy. The policy is narrowly defined as meeting Canada's outstanding lawful obligations. As a result, the policy ignores the broader and more pressing interests of the government in resolving these claims in a manner that addresses the government's real priorities concerning Aboriginal people, which are reducing poverty, eliminating housing problems, improving health conditions and ending economic marginalization.
Let me tell you a story about the 18 claims that we have settled. We spent seven to ten years trying to get a claim validated through the narrow, historical, legal arguments and adversarial negotiations. Fort McKay took 17 years. Throughout that process we heard nothing but, "What is the minimum legal obligation, the minimum compensation required to be paid from the Specific Claims Branch?'' Yet the day the settlement was signed, in the final ten minutes, the ministers were out there praising the positive economic, socio-economic and governance impacts these claims would have in the community. There is a complete disjuncture between the government's stated interests of using claims as a platform to achieve economic self-sufficiency and self-government, and the process and criteria that claimants must go through to get there.
In short, in order to make this relevant to this government and to future governments, the claims process must be seen as a key tool for restoring to First Nations the land and economic resources they have been deprived of through failure to meet treaty obligations or breach of lawful obligations. This is about restoring to First Nations their economic capacity to participate in the regional economies.
I would ask you to look at appendix 3, a letter to Deputy Minister Wernick, with whom I spoke regarding this matter in Edmonton in July. I mentioned that if we want to increase Aboriginal participation in the Alberta economy, we need to settle claims. This provides the capital pool and the economic resources for those communities to springboard out of the problems in which they find themselves. Why is that in Canada's interest? The overwhelming data would show that this reduces Canada's short- and long-term dependence and maintenance costs for the Aboriginal community, including health costs, poverty cost, social assistance, et cetera.
Claims must be seen as a means of investing in and capitalizing First Nations, not merely as a means to narrow legal and technical grounds of meeting outstanding lawful obligations. Until the government turns the corner on that, it cannot get the resources in place to fix this problem.
The second fundamental problem is that Indian and Northern Affairs Canada, INAC, and the Specific Claims Branch do not have the credibility, authority, expertise or resources to handle this problem. There is no chance that the central agencies will invest the resources or personnel in this organization, as it is currently led and structured, needed to address a problem of this magnitude.
We need a new structure in government that recognizes the number of claims out there, which in our view is well over 1,300. With a potential contingent liability of $6 billion to $10 billion, why can we not have an office devoted entirely to claims resolution? We set up an office for the residential school problem when the amount of contingent liability was significantly less than we have now, with significantly fewer communities affected. Yet, for a huge liability like this, we have it buried in a minor backwater in Indian and Northern Affairs Canada, where it must compete for manpower, resources and ministerial time, with numerous other conflicting priorities within the department. It simply cannot attract enough attention within Indian and Northern Affairs Canada to resource itself to address this problem.
There needs to be a separate office of claims and treaty settlement resolution. We need to take it out of Indian and Northern Affairs Canada; we need to report directly to a senior committee of cabinet that can be staffed with senior, knowledgeable, credible people in the area of dispute resolution, litigation, historical research and negotiation. None of that skill set is presently available in the Specific Claims Branch. They cannot attract it and they cannot keep it. The turnover rate is phenomenal. The level of knowledge, education and corporate memory is minimal. They, therefore, continually repeat historical errors, fail to have effective management regimes and function inefficiently.
If I have one recommendation to senators, it is to establish a separate office, independent of Indian and Northern Affairs Canada, to address specific claims and litigation related to specific claims matters. It is a problem of sufficient magnitude, urgency and importance to First Nations, and to Canadians as a whole, to justify a measure of this sort.
Ron Maurice, Senior Partner, Maurice Law Barristers & Solicitors: I would, first, like to thank you for the honour of being here today to make this presentation. I have been involved in this process since 1991, though not quite as long as my elder brother here, initially as a facilitator on claims. I came into it as a neutral party, with the advantage of seeing how some of these issues are dealt with and how the parties grapple with these issues at the negotiation table.
I was present at the Indian Claims Commission during 66 public inquiries. As much as the commission was a success in terms of shedding a light on these issues and helping to resolve some of them, I feel the experience has underscored the fundamental need for reform in this area in many ways.
As Mr. Slavik points out, the vast majority of the recommendations made by the commission, after an extensive review of these claims, have either not been responded to by the federal Crown or have been rejected outright. That process clearly is not effective as a way of resolving this backlog. I would point out as well that of those claims, where there has been a recommendation made by the commission, those issues do not go away. They are not resolved in any real sense of the word. They simply go into a stasis for a period of time. They may come back later on as claims that are resubmitted under the process; they may come back as litigation issues. There is no resolution to them at all. It is the same for claims that are listed on the department's files as closed or rejected files; they invariably come back in a different form. Part of the value in creating a binding tribunal is separating the wheat from the chaff and resolving some of those issues once and for all.
From 1998 to the present, I have been involved in the negotiation and litigation of land claims predominantly for First Nations clientele. I have certainly had my own bitter experiences with the courts and have managed to, at the same time, resolve a few claims and move some issues forward. Throughout all this, I have been a student of process. I have looked at the current status quo and perhaps what needs to be done to resolve this huge backlog that we are faced with today.
I was involved in the joint task force. One recommendation that came out of that, that stands above all others, is the need to create a truly independent tribunal for the resolution of these claims. Without that, the rest is just tinkering with the process.
This is not a new idea. In 1963, I believe it was the Pearson government that proposed legislation that would have created an independent tribunal and a commission — the commission initially to assist in the resolution of claims and then ultimately a body, a tribunal, with the power to make binding decisions on both the validity of claims as well as compensation that could be awarded to First Nations.
I would note that there were no caps proposed on that body. Ultimately, it died on the Order Paper. It never got off the ground. This is certainly an issue of some standing. Many others have appeared before this committee to make recommendations along the lines of what I will be suggesting today.
I want to underscore that when we talk about specific claims, we are talking about legal obligations owed by the Crown; we are talking about outstanding obligations owed under treaties with respect to land and other treaty benefits. Many of these claims arise from allegations of unlawful surrenders of reserve land that were not in compliance with legislation created by the federal government to protect those lands. They could deal with expropriations of reserve lands, again in situations where there has been a failure to comply with legislation in acquiring those interests. Of course, there is mismanagement of lands and monies and arguments over those.
These claims are rooted in the history of Canada itself and the tension that has existed between competing policy objectives. On the one hand, there was the need to protect Indian lands and Indians from exploitation at the hands of settlers and the Crown itself, and on the other hand there was the pressure on the Crown to open up the lands for settlement, expansion and commercial development. These claims span centuries and go back some time. I point that out because in terms of developing a process, you will need to have adjudicators, experts, who have an understanding of that historical context, to be able to put the facts and circumstances of each of these claims in their proper historical context. That is important. Frankly, the courts are ill-equipped to deal with those issues, either because of lack of training on the part of judges in terms of the historical background of these claims, or simply because they are hostile to these issues. I have certainly seen evidence of that, again from my own bitter experience.
The importance of this is that these specific claims in many respects are derived from Aboriginal and treaty rights that are constitutionally protected under section 35(1) of the Constitution Act. The importance of that is that the Crown is expected ultimately to uphold the rule of law as a fundamental principle of our Constitution. The absence of an adequate process or body for the adjudication of these issues simply fuels the perception that the Crown is not willing to address or come to terms with its legal obligations.
This is an access to justice issue, when it is boiled right down. The current framework provides no adequate recourse to a process for the resolution of these claims. We have the specific claims process, which has been successful in achieving some settlements, but as Mr. Slavik points out, we have a growing backlog and it will take many years to work through it at the current pace of resolution. The alternative to that sit-and-wait approach is to pursue a claim through the courts. That is a hollow gesture when Crown officials suggest that First Nations are always free to pursue a claim through the courts, because the reality of the situation is that most First Nations lack the financial resources to wage a long court battle in terms of these issues. They are incredibly complex. It is easy to go through millions of dollars in litigation. The reality is that most First Nations simply do not have those resources.
Again, judges are ill-equipped to deal with these types of issues; they are not run-of-the-mill motor vehicle accidents or construction lien claims. These issues require many days of trial to be able to work through. There are simply limited judicial resources, and perhaps patience, to try to come to terms with these issues.
There are, of course, technical defences and limitation periods that have been applied across the board with little analysis as to what impact these types of limitation periods have on Aboriginal and treaty rights protected under the Constitution. We are left with the impression that at the end of the day the entrenchment of Aboriginal and treaty rights in our Constitution was partially a public relations exercise if First Nations do not have adequate recourse to civil courts to enforce those rights. That is certainly one of my own concerns.
We see, as a result of all this, just a process, particularly with respect to the courts, in which the First Nations that are involved in that process simply feel it has been a matter of adding insult to injury, and it has not resolved the grievance or the merits of those grievances in any meaningful way.
It is shocking in this day and age that for the last 50 years we have had numerous administrative boards, tribunals and commissions that have been established to provide access to justice for ordinary Canadians in a variety of different areas: pension appeals, labour standards, human rights, all of these are tailored to provide access to justice for ordinary Canadians. Here we have constitutional claims based on Aboriginal and treaty rights with nowhere to go.
With that context in mind, my recommendations are really on two different levels.
The first is on a broad level. This is a focus on new legislation that would establish an independent tribunal or a specialized court, something along the lines of the tax court, with a specialized function and the ability to adjudicate those types of issues.
It is important in establishing that process that there be regard made to some form of joint appointment process, so that the institution itself is perceived as being fair and impartial by both First Nations and the Crown; and that it not have any caps on financial compensation that can be awarded as a judgment. I say that because, in my view and experience, it is a risk that drives settlement negotiations. It is a meaningful assessment of one's own risks in that process that creates opportunity for settlement and reconciliation. If one party holds all the cards or controls that process, both in terms of timing and potential outcomes, then there is little likelihood for a fair and objective outcome. They are achieved from time to time, but that is part of the reason why it takes so long.
In the ordinary civil case that winds it way through the courts, a statement of claim is provided, there is disclosure and discoveries, but 95 per cent of those actions are settled out of court without there ever being a judgment made. If that analogy is applied to specific claims, the same type of results can be achieved. If that leap is taken, the monster created, as I call it, and that tribunal created with the full power and authority to be able to adjudicate these issues in a binding way, it will provide a pressure point on the parties to be able to reach negotiated settlements. This would be based on an enlightened self-interest and risk that is inherent in the process of going to a court or to a tribunal for the answer. Once in front of a tribunal, it is winner take all. Most parties would realize that and find a rational way to reconcile their differences in light of that. That is the global suggestion.
I will address some other proposed changes, without the need for legislative change and operating within the current policy framework. The obvious one is to increase the financial and human resources available to Indian and Northern Affairs Canada and the Department of Justice. That backlog could be reduced significantly if there were enough lawyers and people available to negotiate the claims.
In regard to budgets, that is something we could work with in terms of fiscal envelopes, and in terms of administration and the amounts for settlement, but it would have to be substantially increased. I propose that judgments or orders of a tribunal should be paid out of the consolidated revenue fund in the same way as any other claim would be against the Crown.
An aspect of the process that I have always had difficulties with is referred to as the validation or acceptance stage. The problem there is that it takes about eight to 10 years to get to an acceptance or rejection of the claim. Litigation is now starting to look attractive as the fast-track process, which is a startling revelation. The problem is that the Department of Justice is in an inherent conflict — and, again, this is not criticism aimed at any individuals involved. There are a number of lawyers there, many junior, who come on to these files and are asked to perform the Herculean task of sitting in judgment of these types of claims and doing it with the full realization that to accept a major claim as valid against the Crown could be a career limiting move.
I do not believe that process is needed there at all. Risk analysis should be the basis for entering into negotiations. Is it a strong claim? Is it a weak claim? There is a criterion under the specific claims policy referred to as the degree of doubt. That would be a more meaningful way of negotiating a resolution of these claims. In the civil context, a validation of a claim is not needed by a judge to negotiate a settlement, because 95 per cent of the time they reach agreement on their own terms.
Finally, there is the compensation criterion. I do not know if this area has been explored, but it certainly warrants some consideration. This is the potential development, jointly, of formulas for the resolution of claims and to generate fair settlements. There have been numerous land claim settlements, particularly in recent years, which can be looked at as a bank of data to determine the settlement of a typical claim. This is something that would warrant some analysis. It would take a lot of the guess work out of it, and it would certainly reduce the costs associated with having to undertake new studies every time an entire industry is grown around the specific claims process. It would also reduce the time required to reach a final settlement. That is something that may warrant some further consideration.
The reason we have not come to terms with this today is the obvious lack of political will to implement this type of tribunal. I suspect that has a direct relationship to the overall costs of settling claims. Mr. Slavik referred to an estimated value of contingent liability of about $6 billion. That is not a reason to not create the tribunal. That is a call to arms. It is extremely important to make the analogy of that contingent liability to the national debt, as Professor Schwartz did yesterday. Contingent liability grows over time, so $6 billion in 1998, by the year 2002, if you applied compound interest, will have grown to about $8 billion. The one question is: Can we afford to wait any longer, as Canadians? I believe this is an issue that requires immediate attention and a commitment to get it to resolve.
Finally, it is no accident, in my mind, that disputes with First Nations and the flash points of tensions with First Nations over recent years almost invariably involve some land claim. The Oka crisis, Gustafson Lake, Ipperwash and Caledonia, all of these issues are grounded in land claim disputes. The lack of an adequate recourse to a process that will provide for a fair and just resolution of these claims is a growing frustration.
The Chairman: Thank you both for your presentations.
First, I will ask one question about business. If a person has a legal liability pending against that person, then that person must make that disclosure. Often, it is reflected in the operation of the business. You referred to it, Mr. Maurice, as did others; Mr. Schwartz did yesterday. The government will have to budget an annual allocation and estimate this outstanding debt. This is an outstanding debt because we are dealing with fraud.
Would you say that the whole amount should be budgeted for, or should there just be a portion of it, say, amortized over X number of years? If we do not do this, you are right that the lack of political will is due to the eventual costs of this issue. They are looking at their budgetary process. All political parties are bouncing around, trying to position themselves for the next election. It is survival in this business. Have you a recommendation on that?
Mr. Slavik: I would like to speak to that.
This is the responsibility of the Auditor General. In her report, the Auditor General is supposed to outline what Canada's contingent legal liabilities are. These are not listed in the Auditor General's report as a contingent liability because they are buried in a specific claim process, and they are not filed as specific claims in Federal Court. The agency that should be deeply investigating this is the Auditor General. If you will look at appendix 8 of my report, I sent a letter to the Auditor General last year raising this very question: Why do not the billions of dollars in contingent liabilities for claims get addressed by the department? I received no answer. Mr. Schwartz's point, Mr. Maurice's point and the point I raise in my paper is because the Auditor General is not attuned to this, cabinet is not sensitive to it, and, therefore, it is lacking the political impetus for resolution.
The Chairman: Mr. Maurice, do you have a quick addition?
Mr. Maurice: Would you mind?
The Chairman: No; go ahead. This is critical to the direction in which we hope to go.
Mr. Maurice: Clearly, governments require some kind of fiscal envelope or budget for administrative purposes and to provide some guidance to federal officials who are negotiating these claims based on delegated authority. In principle, this is a given. If a tribunal or a specialized court were created for this purpose, the general rule is that if there is a judgment, it is an obligation paid out of the Consolidated Revenue Fund, CRF. There is any number of ways of managing that. I believe you referred to amortization of that debt over time. The government can issue bonds to raise capital to pay down that debt; that would be one option. Certainly, there is the notion of structured settlements, which would be another way of achieving that or reducing the burden on administrative budgets from time to time.
With respect to this whole approach to claims, first of all, I agree with Mr. Slavik, a better assessment of the contingent liability is necessary. The next part is acquiring a change in corporate culture where performance is measured by how quickly we can reduce that debt, not by how many claims we settle. Part of the problem in settling claims is that it has never been viewed within the department as being necessarily the first priority.
Senator Peterson: The present system seems to be set up for failure, and it has proven it is working that way quite well. That contingent liability you are talking about usually would not occur until there is a judgment against a person. That is another reason they do not want to talk about it because then it is a finite number that people can focus on.
To start the momentum, we have to get down to a size we can start with. You mentioned $6 billion. Maybe it is a conservative estimate. Could we take $2 billion each year to start this process, so the government knows going in that that is a maximum on the first tranche that they will be exposed to, and then they can get some kind of fiscal framework ready?
Second, on the different claims, could they be compartmentalized because there must be different degrees? Perhaps we could establish separate categories, for example, zero to $10 million, then $10 million to $100 million, to get matters moving on the smaller ones to show how it works.
Mr. Slavik: In appendix 1, my fifth recommendation is to do two key studies, one of which is to determine the number of potential costs of claims. That has never been done, and there is a reason for that. If the true size of the number of claims of contingent liabilities were to show up, the huge inadequacy of the current resources allocated by the government and particularly, Indian and Northern Affairs Canada in this issue, would be profoundly embarrassing.
Second, although they have spent $3 billion in settlement money for comprehensive and specific claims since 1990, there has not been one study to determine the socio-economic and fiscal implications for that — not for the First Nations, but for Canada. How does this expenditure by Canada on claims settlements not only get rid of a lawful obligation, but also reduce the socio-economic and related maintenance and dependency cost to Canada?
When Anne McLellan was Minister of Justice, she tried to get such a study going. The Specific Claims Branch and Indian and Northern Affairs Canada killed it because they do not want to see their mandate as extending to looking at the socio-economic implications of claims settlements. Therefore, those are two studies that need to be undertaken.
As for your other suggestions, senator, about compartmentalizing claims and getting systemic organization, that has been on the books for years. The Specific Claims Branch is organizationally and functionally incapable of doing it. We need a different organization to do it.
Senator Peterson: When you get a claim finally approved — you said that sometimes it takes 13 years to validate a claim — what is the shelf life then? You go through all of this; they know that is done, so is it just sitting there?
Mr. Slavik: Depending on the size of the claim after validation, in my experience, it is four to seven years of negotiation time; an average of five and a half years to validate, five and a half years to negotiate, for a total of 10 to 12 years. We just finished McKay, and that was 17 years.
Senator Campbell: I thought my day was depressing until I came here sat down and looked at this.
It amazes me that this whole thing is operating in a twilight zone. It is operating in an area outside of anything we imagined, outside the fiscal and legal framework. Litigation and negotiation, what are they? Who does that? Are we going to have the SCB showing up here, or the people from INAC?
I do not believe we can blame this on the minister. I do not believe the minister is the one we want to talk to. We need the Specific Claims Branch, whoever is in charge of that, to be here. If they can buck Anne McLellan, they can buck this minister. From the looks of this, they have been bucking it for years. This is outrageous.
The Chairman: We have had the Indian and Northern Affairs Canada, Specific Claims Branch, here.
Senator Campbell: What happened?
The Chairman: They told us that it was a nightmare, and they did not have enough resources. I would not run my farm like this, and I do not feel anyone would run a business like this.
Senator Campbell: This is the difficulty. It is $6 billion. We take half of what we are over this year, our surplus, and put it in a bank account and collect interest on it. There is the $6 billion that you have to worry about.
This cannot go on forever. This is not the minister's fault. This is not this present government's minister's fault, nor the one before or the one before that. This is a group of bureaucrats out of control and not answerable to anyone. It is damn well time they were, or they should be finding themselves a new job. That was a good question; was it not?
Senator Hubley: What would happen if we were able to establish an office of claims and rights resolution — I believe we have heard that from other witnesses — and if the human resources and funding issue could be resolved, or, at least, if we had some indication that our proposals would be supported in those two areas, given that Mr. Maurice mentioned validation takes five and a half years and another five and a half to get it settled?
We had a member, whom I did not take seriously at the time, who was adamant that validation should not take more than a year and settlement should not take more than five years. When I reflect on that now, I ask you to give us guidelines about the sort of recommendations we may include in our report.
Given the experience that you have, what do you feel is reasonable? How many years will it take to reach the escalating numbers of claims and the flattening out of the resolutions? Are we ever going to get to the point where we can expect a certain number of claims per year, or be able to say, "Last year there were this many claims and so much money must be set aside to address those?'' I am interested to hear what you have to say about that.
Mr. Slavik: Thank you. I will try to speak to both senators' points.
Senator Campbell, your point is simply this: No one in the government has taken responsibility for this issue. It has been buried in the backwaters of Indian and Northern Affairs Canada for 20 years. I ask you to look at page 8 of my presentation. The whole reason why we want an office of claims and rights resolution is to focus the responsibility and accountability for this issue in a single transparent agency responsible directly to Parliament and/or cabinet. As long as it stays buried, where it can be obscured in other bureaucratic priorities by people who are not accountable and not responsible, we will never make any headway. Pinpointing accountability and responsibility is the key.
First, I want to wholeheartedly endorse the recommendations of Mr. Schwartz and Mr. Maurice regarding the independent claims tribunal. They had an independent claims tribunal in the 1950s and 1960s in the U.S. It was flawed, but it had a sunset clause of 25 years. I believe at the time they settled nearly all the outstanding claims of a similar nature in the United States. There were flaws with that process, but they did have an independent body that worked on it. They had a separate office in the government in the United States to resolve this and they got rid of most of their claims in a 25-year time frame. Thus, no matter how you cut this, we are looking at 20 to 25 years to get rid of this backlog and resolve these claims.
[Translation]
Senator Gill: I would like to welcome Ron and Kim whom I met a few years ago at the Indian Claims Commission. I would also like to congratulate Mr. Slavik.
[English]
We need more than rational here. We need some heart, and you have it.
[Translation]
Let us not forget, as someone told me, that the most difficult road to follow is that between the rational and the heart. Some have found that road, and they deserve to be commended for that. You need both to deal with things on the aboriginal side.
This evening, I think if our friend Jim Prentice were here, he would have liked to have the same discussion. I remember that we had those discussions a few years ago. There were hundred of recommendations of all kinds in the commission's reports. Obviously, we did not make much progress.
I do not know why we get stuck. There is some kind of a monster keeping us from advancing. I cannot describe that monster but something is holding us up. So many people want these issues resolved, but we never seem to reach any settlement. So, why are we stuck? These are excellent recommendations but something is not working.
I think there is a set of things, a spiral, a situation that exists as if someone — as Senator Campbell said — were in control somewhere letting the wheel turn when he wants to and stopping it the rest of the time. Something is happening.
Perhaps it is because First Nations were made to act as claimants. We are claiming. What are we claiming? A part of our land. This is crazy, this is absurd. First Nations were put in a position where they have to claim their land. Imagine, a part of the land and a part of the natural resources. And we have been playing with this for years.
I can remember. This is going on with specific claims since 1973, not to mention comprehensive claims. We are scaring people with huge figures. Indeed, the figures are very large.
I do not know how to deal with this, but we need to change the course, the goals and the way we are discussing things with the government. I do not think we can keep discussing and claiming things from the government. The amount of the debt should be set. I will encourage my colleagues to do this because it has been too long. I have grown old since the time of the commission. I do not have so many years left ahead of me, but I want something to happen.
This evening, you have suggested many fine recommendations. But hundreds of recommendations were made and nothing has changed. What are we to do? I do not know. I think the philosophy and the process must change. Instead of talking about a claim, we should focus on the liability. It would be worthwhile for everyone to settle a liability because we are all citizens of the same country. We have to find a way to live in harmony. We are always fighting each other; there were murders and other kinds of incidents. What are we waiting for?
I think we must find a way first to settle the liability then to talk and live together as citizens of the same country. I would like to have your thoughts about this.
[English]
The Chairman: Gentlemen, do you have a shock factor that we could inject into the system?
[Translation]
My friend Aurélien Gill still has a lot of enthusiasm. And it has not been that long. Maybe a hundred years?
[English]
Mr. Slavik: I have listed my recommendations in appendix A.
Why is this not happening? I have struggled with that question for years. I have set out what I believe the reasons to be.
First, the Specific Claims Branch, and Indian and Northern Affairs Canada in particular, has no credibility with First Nations central agencies or with cabinet in terms of settling these issues expeditiously, reasonably or fairly. Therefore, they are not going to resource them with either the manpower or settlement resources that these claims urgently need. As long as one is working in that context, one's credibility for bringing about change is zero.
Second, Canada does not appreciate how claims can be instrumental in changing the socio-economic and governance future of First Nations. They have not drawn the link between claims settlements and the real issues that Aboriginal people face in this country. They are wrongly characterized. For that reason, it is extremely important that claims settlements be part of the economic agenda of Aboriginal people, not part of the grievance and the lawful obligation agenda; they must be part and parcel of the economic agenda. Until they move from that mindset to this one, no one will invest in it.
The Chairman: Mr. Maurice, do you have something brief to add to this discussion? I am running out of time. The enthusiasm level is rising with my colleagues here. This is not a partisan issue; this is totally non-partisan. This is an issue that has been before us. The department is really a dispenser of welfare, plainly. We were told this by Aboriginal elders in British Columbia on our economic development study, which we are preparing in parallel to this, where an elder came before us and said: "You put us on a reserve in a muskeg. You gave us a number, like prisoners of war. You put us in residential schools where you wanted to destroy our culture and assimilate us. Then you put us on welfare.''
Then he went on to say: "I have several young people on my reserve that I would like to get off welfare, but I get over $2 million for welfare and I get merely $20,000 for economic development. How can I ever resolve the dilemma? It is a vicious cycle.''
I hope, Mr. Maurice, you will close off this situation.
Mr. Maurice: It is a bit of a daunting task. With respect to Senator Gill's comment, I would gladly send in an invoice on behalf of a First Nations client for the debt owed if I thought that anyone would pay it. I believe we could finally get a quick resolution that way, but it is not practical. At the end of the day, the Crown will need some rigor in its process to separate the good claims from the bad claims and find a way to move forward. All I would emphasize is the need to create that tribunal. If there is one action the Government of Canada could take, it is to create the tribunal to provide the pressure point for meaningful negotiations on an equal footing with the Crown. That will make a fundamental difference.
I have an anecdote from when the joint task force tabled its recommendations for the creation of an independent tribunal. The timing could not have been worse. When it was presented to cabinet, from what I understand, the story was that at the same time the Human Rights Tribunal had decided that the government owed women, employed with the public service of Canada, a massive amount of back pay based on the pay equity issue, that their Charter rights had been violated.
We should not be trying to put a price tag on Charter or constitutional rights. Those are legal obligations due and owing; they should be paid. That is what the rule of law is all about and respect for the rule of law.
At the end of the day, the government decided that they were not prepared to give the independent claims tribunal a blank cheque. From a systemic point of view, that is exactly what they need to do in order to provide a reasonable approach to negotiations. It is that risk analysis — the risk of losing an amount in the neighbourhood of $6 billion all told in terms of contingent liability — that will provide the drivers for negotiating settlements.
The Chairman: I want to thank both Mr. Slavik and Mr. Maurice for their excellent presentations and for sharing their knowledge with the committee.
We have the second panel before us this evening. Alan Pratt provides a broad range of advice for chiefs and councils and other First Nations organizations. He has been involved in the successful settlement of ten specific claims. He has appeared at every level of court in Canada, including four appearances in the Supreme Court of Canada.
Kim Alexander Fullerton's practice is devoted exclusively to representing First Nations in land claims against Canada and Ontario, in negotiations with major corporations in fishing negotiations and as general legal counsel. He has been an appointed trustee for three First Nations land claims settlement trusts.
Gentlemen, as you can see, there is much enthusiasm on the part of my Senate colleagues in trying to seek out the knowledge we require to put together strong recommendations that will hopefully be acted on by the government.
Alan Pratt, Barrister & Solicitor, Alan Pratt Law Office: There is probably not a subject that is closer to my heart and my economic interests and my family, because my wife is a member of a First Nation, as is my son and grandchildren, who are represented by Mr. Slavik in ongoing specific claims negotiations. It is important to all my family.
I find myself in the awkward position that the predecessors who spoke before me have said almost everything I planned to say. That does not mean I will not use my nine minutes; I may just change the focus of what I say.
I have provided a written outline of the talk I was to give. We read in the headlines last week that Canada has a $13- billion surplus and that the current government is planning to use much of that to pay down the national debt. I want to make the observation that has been made here by others, that there is more than one kind of national debt. Specific land claims are part of our national debt. I agree with what was said, that we must begin not only to imagine these as contingent liabilities, but also as part of our national debt, as legitimate debts owed. Therefore, in running the country as a business, we must evaluate them and pay them down. It will not happen overnight. Mr. Slavik says 20 to 25 years. That seems reasonable to me.
I am reminded of comments made by the Minister of Indian Affairs in 1991, who announced minor reforms to the specific claims process. He said that he was confident that all of the specific claims in Canada would be settled by the year 2000. That reflected then — as all of us who practise in the claims field knew then what that minister probably did not know — the abysmal ignorance of the Government of Canada as a whole in regard to the magnitude and nature of the issue of specific claims.
Not only are specific claims a debt owing; they are, as Mr. Slavik and others have said, evidence of gross breaches of the Crown's honourable obligations to First Nations. They are the consequence of theft, fraud and negligence by the Government of Canada acting as a fiduciary. Acting in a trust-like role, the federal officials have, through their negligence, fraud and deliberate carelessness, deprived First Nations of much of their best agricultural land, money owing — as well as land that was never provided — and economic opportunities.
When we examine the conditions of many First Nations communities today, we see poverty, unemployment and substance abuse, all the issues that this committee hears about on a regular basis. We ask ourselves, "Why is it this way?'' There is a single cause: The Crown has not lived up to its treaty promises; it has not lived up to the promise in the Constitution of honouring Aboriginal and treaty rights.
From today forward, it is my view that we need to take existing Aboriginal treaty rights seriously to ensure that First Nations benefit from them socially, culturally and economically. We must go back in the past as well and deal with the consequences of past breaches of trust-like obligations.
I do not know how many billions of dollars it will take to settle all the claims. Mr. Slavik's calculations are a starting point. It could be a much bigger number, but, certainly, it is not a smaller number. How many of these problems could we hope to solve? I do not know, but it would be a start.
The specific claims policy itself goes back to 1982. We have learned a great deal about the law that applies to Aboriginal people since 1982. The federal government has made one amendment to the specific claims policy in that entire time, and that was in 1991 after the Oka crisis. The specific claims policy was amended so that pre-Confederation claims could be dealt with under the specific claims policy. Not one other change has been made in the 24 years since that policy was written.
What happens when we settle a specific claim? We bring land, money, opportunity and the chance to repair damaged economic prospects to a community. Ministers relish the chance to celebrate the success of a claim settlement; it is a wonderful photo opportunity. As Mr. Slavik says, where were they for the 20 years leading up to that day? It does not become important until there is a photo opportunity.
I agree with all the reasons, which you have heard, why the present system is not working: It takes too long; there are not enough resources, et cetera. Ultimately, there is no commitment on the part of the government to take this issue seriously. There is no commitment to even begin to measure the magnitude of the challenge and to put in place the machinery that is necessary to deal with it. I do not feel anyone realistically believes a blank cheque is in the cards; we do not need a blank cheque, we need a big one. It can be managed without diminishing the size of the task.
We also need a different attitude on the part of the Crown toward litigation. Unlike some of my colleagues, I do litigate these claims on occasion. There is nothing more satisfying than having the chance to stand in front of an independent judge with fair rules and having that judge actually say who is right and who is wrong. One does not get to appear in front of an independent body with the power to impose a decision in the specific claims process. As Mr. Maurice said, a binding body is a fearsome monster to create. Rational people will avoid that at all costs if there is a risk of losing, which is an incentive to settling.
We can change the way we litigate claims. The Government of Canada instructs its lawyers to use every procedural tactic to delay, obfuscate, complicate and to run up costs when in court. It is not an honourable way of dealing with just debts. We need to create a new system. I am in favour of a specific claims resolution act. However, I did not say I am in favour of the specific claims resolution act because, as I have said in my paper, it should be scrapped. I believe we can fix it or we can replace it, but we need legislation. We need legislation that, perhaps, creates a commission that will provide a level playing field and the power to put pressure on the government to deal with these claims in a more expeditious way.
Under section 28 of the existing Specific Claims Resolution Act, when a First Nation submits a claim to the commission that would be created under that act, the first action the commission takes is to convene a meeting of the parties; second, the commission suspends the matter indefinitely. The act guarantees that the federal government will have unlimited time to respond to that claim. That claim will remain suspended as long as the government wants.
We need an act that puts useful legitimate pressure on the government to staff up its side, to take this seriously and to come to the table in good faith with some severe risk if it does not hold up its end.
If this committee is interested in writing a report that will produce a better Specific Claims Resolution Act — and I believe you are — I would be more than happy to come up with some additional recommendations for you. I feel it is a very important piece of outstanding business.
My last point is on the Specific Claims Resolution Act. That act is a tremendous disappointment to me and to anyone who cares about this issue. A joint task force produced an agreed set of principles and a draft bill. When the drafting instructions produced jointly by the First Nations side and by government went into the legislative drafting process, they were distorted and changed. The government was let off the hook and relieved of responsibility on almost every issue. That act was rammed through Parliament and the Senate under a previous government. The next previous government decided that, even though it received Royal Assent, it would not be proclaimed in force. We do not know what this government plans to do. This is sitting there like a very smelly piece of business. I ask this committee to consider this: What does it say about the rule of law when the government can pass a piece of legislation that everyone dislikes, yet no one wants to do anything about? You are pretending it is not there. It has received Royal Assent; it is not in force or on the statute books. It has a number; it is in the Statutes of Canada 2003, chapter 23. We have no idea if it will ever see the light of day — it has seen the light of day, but it is sitting there decaying and smelling up the place.
There are good elements to that act; it can be salvaged, in my opinion. I do not know what Professor Schwartz said to you yesterday, but he has some good ideas about the deficiencies of the current act. Some of those could be analyzed and turned into positive recommendations to improve this act.
I do not despair. I trust that one day all of this will be fixed. As a country, we must to come to term with our debts. We must begin by looking seriously at what those debts are and budget for them. We must take some of our surplus and pay it down. We will benefit from it; I have no doubt of that. Anyone who has practised in specific claims has seen the positive, practical human benefits that result from these settlements.
The Chairman: For your information, on the list of potential witnesses, we have the Auditor General slated as a witness in two weeks.
Kim Alexander Fullerton, Barrister & Solicitor: I want to thank the honourable senators for inviting me here this evening. I would also like to thank the Algonquin Nation for allowing us to meet on their territory.
I have something more positive to say than my colleagues. The current system has been made to work once, that I am aware of, on a project in which I was involved. It is called the Michipicoten Pilot Project for Specific Claims. In a 10-year period, starting in 1997 and hopefully concluding in March of next year, we examined 13 potential specific claims and have resolved all of them, one way or another. That is a record that I do not believe has been matched anywhere else in terms of making the specific claims system work. This evening, I want to talk about what made that work and leave you with the question as to why the department will not do it again, because they have refused to do so.
We began with a simple and fundamental concept. We made a proposal to the then Minister of Indian Affairs, Mr. Irwin, back in 1996, and said, "Why do we not sit down and look at all of one First Nation's claims at once? We will do a cooperative, team-based approach to the resolution of the claims. We will do joint research. We will have lawyers from both sides sitting down at the outset of the process identifying the issues, narrowing the issues, and directing the research.'' It worked, and it worked like a charm.
The fundamental flaw with the current system is that it has a two-staged process. The first stage is the validation of claims. The First Nation researches the claim in isolation and submits it to the Specific Claims Branch. They contract out, what they call, "confirming research'' to examine the research that the First Nation has already done. They send it back to the First Nation, who examines it, and then it is shipped off to the Department of Justice in its entirety, where it sits for a few years. Finally, a justice lawyer examines it, renders an opinion and a letter comes from the minister or the deputy minister — whoever is writing the letters these days — saying whether the claim has been accepted or rejected.
That can take anywhere from five to 10 years. In the normal process, the parties have never met. They have never sat down in the same room and talked about the claim. It is just pieces of paper going back and forth to people who never tried to understand what the problem is, how it could be solved, creative resolutions to these issues, what the First Nation really wants or what Canada wants.
It is a process that would be recommended to no one as to how to resolve a dispute. Can you imagine trying to resolve a dispute without ever sitting down and talking to each other? The fundamental flaw with the existing system is that one labours for years without ever talking about the nature of the claims or finding ways to resolve them.
I am a strong believer in negotiated settlements as opposed to imposed settlements as the best way to resolve these issues. I have the Supreme Court of Canada on my side on that one. They have constantly said the best way to resolve these issues is through negotiation, not through litigation and not necessarily through tribunals that have binding authority, either. The issues must be negotiated intelligently, and the current system is not an intelligent way to negotiate.
Use joint research wherever possible, rather than having the First Nation hire one researcher to do all the research and then Canada hiring somebody else to replicate that work. This adds years and usually $30,000 to $50,000 on to the cost of the claim. If one can sit down and do joint research at the outset, hundreds of thousands of dollars can be saved. There are also tremendous benefits to be derived from negotiating all of one First Nation's claims at the same time. I point out in my paper that we submitted six claims to Canada; all six were accepted. We have settled five and are negotiating the sixth right now. The tight time frame of the negotiation of all these claims has saved us over $1 million, a conservative figure, in study costs on our last claim. We are able to use the studies from the previous claims and apply them prorated to the claims that we are negotiating with Canada right now. The cost savings associated with negotiating these claims all together completely offsets the entire cost of funding the project from the outset.
Whatever you recommend, please recommend that the parties are obliged to sit down and discuss the issues, look at the problems, and try to find ways to resolve them.
One of the key factors in the resolution of the Michipicoten Pilot Project is that we had the Indian Claims Commission involved from the outset. They provided mediation and chaired our meetings; they kept us on track. They provided invaluable service in performing coordinating loss of use studies. They basically acted as a mediator. The specific claims process is a form of dispute resolution, and the way it works now is like trying to do mediation without a mediator. There is the First Nations and Canada, and no one is helping them or moving them along. Claims can be settled without mediation, but I have found, in my experience, that it helps tremendously.
One of the big problems that you will be faced with is Canada does not have exclusive jurisdiction over these issues, nor exclusive liability for the resolution of these claims. Almost all pre-Confederation claims need a provincial component to make a resolution. When making recommendations, you must keep that in mind. Canada cannot act unilaterally on a claims resolution system. The 10 provinces and three territories need to buy into the system. If they do not, it will not work; and it will not work for pre-Confederation claims.
Some provinces work reasonably well on resolving claims, some better than others. To whatever extent is possible, you should try secure provincial buy-in to what you are recommending. Right now, for example, the Province of Ontario will not sit down in the same room with the Indian Claims Commission because they had nothing to do with it, and it makes the facilitating claims rather tricky. Most, if not all, pre-Confederation claims require the province at the table to settle.
Senator Campbell: Did you say that they are now starting to use, what I would refer to as, "case law'' where they go back to say, "Here is what happened here; then we should move forward on that,'' or are you saying that each single case has to be looked at individually without going back and referring to previous case law?
Mr. Fullerton: No, they do look at previous case law.
Senator Campbell: I am from British Columbia, so we are in the middle of treaty negotiations. It is sort of a different look to what you have here. I look at this map from your presentation, and this whole square on the map was reserve land.
Mr. Fullerton: It should have been. The white area was reserve land.
Senator Campbell: Is it gone?
Mr. Fullerton: Some of it is left, the rock and the swamp.
Senator Campbell: It is late in the day.
Mr. Pratt: I will tackle Senator Campbell's question about case law.
Mr. Fullerton is right. The Department of Justice's evaluation of claims and the validation process, which is also problematic for the reasons other people have said, is governed by case law from the courts. A stream of cases has to be going to the courts, and all the costs that that entails, to develop the case law that describes the legal principles that they will recognize.
One of my complaints about the specific claims process is that we do not have the development of any body of case law or body of precedent in the claims process. Let us say the lessons we learn from previous successes and failures are learned unevenly. The federal government can talk freely amongst themselves. If they secured a certain advantage in a negotiation, their negotiators and lawyers can sit down — they have no confidentiality or privilege issues — and they can gang up, strategize and develop corporate approaches and positions.
First Nations cannot do that. They are negotiators. We have no ability to learn from the gains of other negotiation tables; they are secret. We are required to sign agreements making the negotiations secret.
Senator Campbell: Then do not sign.
Mr. Pratt: Then they will not talk.
Senator Campbell: As a lawyer, would you sign any other agreement, knowing what would take place? There is a reason why it is called "First Nations.'' It is a whole group of nations that have one thing in common: they are the first people in Canada. Why would they not be able to share it with other organizations that have exactly the same reasons for being there? That is why Indian and Northern Affairs Canada can talk to defence, because government is one big happy family. All of these are just different parts of that huge organization called "First Nations.''
Mr. Pratt: We can talk about generic matters but we cannot talk about the specifics. For example, if Mr. Fullerton, Mr. Slavik or Mr. Maurice had studies conducted for one of their claims, those claims are normally done jointly by the First Nations and the federal government.
This is off topic, but the federal government is not allocated enough money to do its own negotiations. I believe Ms. Stewart mentioned her budget was cut from $6 million to $4 million per year, and there is another pot of money, roughly $9 million a year, for negotiation funding that is given to the First Nations in the form of loans.
The federal government indicates that they need to complete loss of use studies and appraisals and that they want to complete them jointly. That is good, but we have not one penny to contribute to the cost of those studies. Therefore, they get First Nations to borrow all the money and sign promissory notes for it. First Nations are forced to borrow money from the federal government to pay for the federal government's obligation, because the federal government's budget does not include enough money for them to hold up their end at the table and do appraisals and loss of use studies.
The consequence of that — getting back to the senator's question — is that those studies jointly commissioned are confidential to the parties who commissioned them. I cannot share my report with Mr. Fullerton, for example.
Senator Campbell: What would happen to you if you did share your report?
Mr. Pratt: I am afraid to find out.
Senator Campbell: I realize you would not to do that as a lawyer because you would be disbarred. If you were an ordinary citizen in negotiations, what would they do to you if you shared information?
Mr. Pratt: I am not sure.
Senator Gill: Following on this line of questioning, I doubt those of you involved in First Nations claims could form an association together. Am I right? I am talking about lawyers. I imagine it would be possible for you to form an association and to help each other affect changes. Is that possible? Does something like that currently exist?
Mr. Pratt: That is an idea I am sure we have all come up with at different times. If we were not so busy doing what we do, perhaps it would be an excellent approach to try. In fact, the chance to sit down and have a conversation with three of my colleagues is a rare opportunity; we could share some of our experiences from across the country.
The point I want to make is that we are precluded from sharing much of the product from the negotiation table with our colleagues. The federal government is not under that constraint. They have an unfair advantage on top of everything else.
Senator Gill: Mr. Fullerton, you mentioned that in most of these cases the provincial government should be involved because they are usually related in some way. Is that not the responsibility of the federal government, to deal with Aboriginal people and to hear their interests? I am just speaking theoretically. Indian and Northern Affairs Canada is responsible. In the Indian Act, we are still the minority, and somebody should take care of us.
Mr. Fullerton: The settlement of many claims involves land, and the federal government does not own much land. The majority of land in this country is owned by the provinces.
For example, in the Michipicoten boundary claim, we have negotiated with the Ontario government that the First Nation will be getting about 3,000 acres of Crown land from the provincial government. That is not something that the federal government can bring to the table.
Land is something that the First Nation very badly needed. The land they were left with after all illegal takings literally left them with rock and swamp. They need good land. That cannot be had without the involvement of the provincial government. There is much the federal government can do on its own. When it comes time to settling land claims, it is the provinces and territories that have the land.
The Chairman: Thank you very much. It is very encouraging to see witness after witness reinforcing the same recommendations. Mr. Pratt, did you say you had further recommendations to put forward?
Mr. Pratt: I am also very encouraged by the discussion and the intervention of the members of the committee. You have certainly been hearing from people with strong views.
I would be most interested in assembling further thoughts and, if I could, perhaps emailing them to the clerk of the committee in the next short while. I will undertake to do that.
The Chairman: Thank you, Mr. Pratt. That applies to you, Mr. Fullerton, as well as to Mr. Slavik and Mr. Maurice.
The committee adjourned.