Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 9 - Evidence - Meeting of October 31, 2006
OTTAWA, Tuesday, October 31, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 9:33 a.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.
[Translation]
The Chairman: Good day and welcome to the 17th meeting of the Standing Senate Committee on Aboriginal Peoples. I am Gerry St. Germain, from the province of British Columbia, and Chair of the committee. Today our committee continues its study on specific claims.
The committee intends to examine the federal's specific claims process with a view to making recommendations aimed at a timely and satisfactory resolution of First Nations grievances in that manner.
First, let me introduce the members of the committee: from the province of Quebec, Senator Aurélien Gill and Senator Pierre Claude Nolin.
[English]
The deputy chairman of the committee is Senator Nick Sibbeston from the Northwest Territories. Senator Gustafson is from the Province of Saskatchewan. Senator Lovelace Nicholas is from the Province of New Brunswick and Senator Dyck is from the Province of Saskatchewan.
[Translation]
We welcome this morning Mr. Denis Brassard, Specific Claims Coordinator for the Mamuitun Tribal Council. Welcome, you may have the floor.
Denis Brassard, Specific Claims Coordinator, Mamuitun Tribal Council: Mr. Chairman, I thank you for the invitation to testify before your committee. I appreciate the interest you have in my testimony. It is an honour for me to be here this morning.
I have been working for Aboriginal organisations in Quebec for approximately 25 years and have been involved in specific claims issues or almost 20 years. The question asked by your committee concerns the effectiveness of the process for dealing with specific claims between Canada and First Nations and mainly delays in the process. My evidence will address three interconnected issues from the more general to the specific. I will now humbly make my presentation.
The first point I would like to raise is the status of specific claims in Quebec. I have pooled out the mini-summary per province, which is available on the Internet. It shows the status of claims on June 30 2006. Out of 110 claims submitted by First Nations in Quebec, 17 were resolved, 10 were under consideration and 68 under review by Canada.
If we break that down a bit, we see that out of the 68 that are under review, 45 of them are in the hands of Department of Justice lawyers. In other words, two thirds of claims which are under review are awaiting a legal opinion. That is a lot. That is where the bottleneck lies.
Aside from that, the fact that only 17 claims have been settled also shows that most of the work on specific claims remains to be done in terms of negotiations and agreement. Moreover, in looking at the information on claims that were settled, we see that they were all submitted between 1983 and 1993, which gives us an indication of a wait time of at least 10 to 15 years between the submission and resolution of a specific claim. At that rate, we can reasonably expect that a claim filed in 2006 will be settled somewhere between 2016 and 2021 if all goes well. That fact that all does not always go well for specific claims leads me to my second point: acceptance or rejection of claims.
When we look at the statistics on specific claims that are accepted, rejected or settled, we realize that these categories are not always as clear cut as they appear to be. For instance, under the heading claims under negotiation, nuances could sometimes make a big difference. I can think of one specific claim which was submitted for the first time in 1985 and was rejected by Canada in 1987. Further to that, we carried out new historical and legal research, leading to a new submission in 1994.
We received Canada's position in September 2005, after the First Nation had waited over 10 years. We were told that the delay had been caused by staff changes in the Department, the shortage of French-speaking lawyers at Justice Canada, and so on, and that we should be pleased because the claim had finally been accepted by Canada.
However, the claim had only been partially accepted and it is estimated that only 10 per cent of the value of the claim was accepted. This was so low compared to the damages suffered by the First Nation, that it is really a disguised refusal, an attempt to close the matter with an inexpensive deal.
What can we do in such a situation? Do we have to do more research, put forward new arguments and wait another 10 years until the First Nation gets justice or get 20 or 25 per cent of the damages? Or should they go to the Indian Claims Commission or to the courts?
Accepting a claim for negotiating purposes is all very well, but we have to see what Canada has really agreed to. We cannot judge how well the system works simply on the basis of statistics on specific claims that have been accepted or rejected.
This brings me to my third point: specific claims and our treaty. One of our concerns about the delays in settling our specific claims has to do with our comprehensive land claim.
As you must know, the Mamuitun Tribal Council is actively negotiating with Quebec and Canada to reach a settlement on this comprehensive land claim with the Innu First Nations. An agreement in principle was reached in 2004, and we hope to sign a final agreement in about two years.
Article 10.6.2 of the agreement in principle provides that under a release clause, the First Nations will not be able to submit any new specific claims, once the treaty has been signed. This clause means that we must put forward all our specific claims quickly. And this raises questions about the delay in settling specific claims.
Some questions come to mind: Will the First Nations sign their treaty with Canada and Quebec, but will they have to wait another 10 years to settle their specific claims? Or could the First Nations not settle their specific claims at the same time they signed the treaty?
Of course, in the latter case, I would not want Canada to take the opportunity to reject out of hand our specific claims or for First Nations to get cheap deals, but I do think the idea deserves some consideration.
I am guessing that this is a concern shared by other First Nations in similar situations elsewhere in Canada, in British Columbia, for example.
I would be pleased to answer any question you may ask.
The Chairman: Thank you, Mr. Brassard. I will now give the floor to Senator Gill for the first round of questions.
Senator Gill: Thank you, Mr. Chairman. I have known Mr. Brassard for 25 years, since 1975. I would like to thank him very much for his presentation. It reminds us that specific claims were submitted beginning in 1980-1982, after the introduction of the specific land claims policy, which was subsequently changed, if I recall correctly. I am also reminded of the beginning of negotiations in 1975. I was the first negotiator of the Innu Nation in the comprehensive negotiations.
As we can see, things were probably managed badly at the beginning, because this process is still under way, 31 years later. All we can say is that whatever the competence of the people involved, something is wrong somewhere.
The problems have been fairly clearly identified: the delays, changes in staff, the lack of francophone lawyers, which I have difficulty believing because all the lawyers I know are bilingual. In other words, there is a lot of double talk in the answers. It is probably the structure that is not working.
How many specific claims are there currently that have been filed and that have been settled or not? How many are there for the Innu Nation?
Mr. Brassard: It is not finished for the Innu Nation. We are still working on new claims. We are hurrying to finish them before the possible signing of the treaty. We believe that the treaty will be signed in approximately two years. I do not have the precise figures with me to say how many there are. That depends on which community we are talking about. Let us say that the Innu communities have some 30 specific claims.
Senator Gill: Because in my community alone, Mashteuiatsh, I think there are seven or eight specific claims, following the building of dams, for example, there were floods, hunting grounds, cities were built, including the building of the City of Sept-Îles, the Indians were moved, La Romaine to the North Shore, the Village of Saint- Augustin was moved. So there are a lot of specific claims.
But there are probably also several in the other communities. And I also imagine that what is important is the comprehensive claim. After the signing of the agreement in principle — I remember that it was Paul Martin, prime minister at the time, who finally succeeded in bringing about the agreement in principle — was there any news? It has been at least two years.
Mr. Brassard: You are talking about the comprehensive claims agreement? I am not in a position to give you any information on that negotiation. I am only very marginally involved.
Senator Gill: Is Mamuitun dealing with that?
Mr. Brassard: Yes, indeed. But I would prefer to let others answer that kind of question.
The Chairman: How many Innu communities are we talking about?
Mr. Brassard: There are nine Innu communities in total. The specific claims deal mainly with the former reserves, which is what one might expect because in this area, the problems go back farther in time. Therefore there were damages and wrongs done to these reserves in the past, in the 19th century, for example.
The Chairman: We are talking about how many Innu communities?
Mr. Brassard: In total, there are nine communities, but there are approximately four that are the subject of specific claims.
The Chairman: In the South or in the North?
Mr. Brassard: More in the South. Those on the lower North Shore are more recent, and so the problems are less developed.
The Chairman: Thank you, Mr. Brassard.
[English]
Senator Sibbeston: I had the good fortune to visit the community of Mashteuiatsh last week to attend a social and economic conference. I was impressed with the area. Among my wife, my son and I, we were able to get basic services, but we were in an area that is French, with little English spoken, so it is a challenge. However, it was fun to be in that area.
Our committee is dealing with the area of specific claims and we propose to offer solutions to the federal government. From your experience, what changes do you think we ought to recommend? What changes could we make that would speed up the specific claims process and eliminate the backlog that presently exists?
[Translation]
Mr. Brassard: I think there are several ways to improve the effectiveness of the system. I believe that other witnesses before me have spoken amply on the subject. I can, however, speak to you about a way in which to facilitate the settling of certain specific claims, and I presume that if it is easier, it will go more quickly.
The issue is the involvement of the provinces. I believe that, on average, one specific claim out of three involves a province. I have dealt with this kind of claims that normally go back to before Confederation, and one way that could be set up without too much trouble would be the following: The idea would be that the federal government, Canada, would unilaterally decide that the province is involved. That is the first finding, and the First Nation is never really in favour of that decision, but Canada would decide. It would decide that province is liable for half of the damages or responsible for half of the wrongs, for example.
Under these circumstances, the First Nation would have no choice but to accept the decision, and given that the province of Quebec does not recognize federal policy on specific claims, it does not want to sit at a negotiating table on specific claims with Canada and the First Nation.
The problem arises from that: Canada obliges the First Nation to negotiate an agreement with Canada on part of this specific claim and says to the First Nation: "Go see the province for the rest.'' You understand what a predicament that puts the First Nation in, because the province has no policy on specific claims and we do not know what the results of such a negotiation with the province would be.
The suggestion I want to put forward is the following: why would Canada not accept to negotiate the entire specific claim with the First Nation even if part of the wrongs are ascribed to or attributable to the province; and following that, Canada could then turn to the province and say: "Now let us settle the issues of legal liability.''
The First Nation would be strengthened by that procedure because the final agreement would be between Canada and the First Nation and there would be no lingering uncertainty as to whether or not the province would accept to negotiate an agreement with the First Nation. That is one suggestion I can make this morning.
[English]
Senator Sibbeston: The specific claims process for grievances by First Nations dates back historically. First Nations take their claim to the federal government. The claim enters the system of the Department of Justice, which is there to protect the Crown's interest, and the department ultimately decides whether there is a legal case to be made.
Aboriginal people in a claims situation are at a great disadvantage. We heard a number of witnesses from Manitoba and Saskatchewan who stated that we need to take the decision-making process away from the federal government and move towards an arm's length or independent body. At the moment, the federal government is the body against which a claim is made. Ultimately, the federal government is the judge. The government is asked, in a sense, to decide against itself. Thus, the government is reluctant and the process becomes difficult. As I said, First Nations and Aboriginal people are at a great disadvantage in this process.
What do you think about the idea of creating an independent body, at arm's length from the government, which would decide cases? Would this independent body speed up the process?
[Translation]
Mr. Brassard: I believe that basically, the issue of the delays is related to the issue of conflict of interest. Canada is both judge and party. Canada has no interest in quickly settling the specific claims, because the people at Justice Canada who advise the Minister of Indian Affairs are there to defend Canada and not to act as trustees for aboriginal interests.
There is, I believe, a fundamental connection between the conflict of interest and the delays we have been complaining about for such a long time and for which we are trying to find solutions — small solutions.
Basically, so long as the conflict of interest remains, so long as there is no arm's-length federal government organisation to deal with the specific claims, in my opinion, the wait time will remain an issue for a long time to come.
Senator Nolin: Mr. Brassard, a few years back, in 2003, we passed legislation which, if my memory serves me well, created a process which indeed seemed a much more credible one and was more arm's-length as far as conflicts of interest are concerned. I understand that this legislation has yet to be enacted by the executive branch.
Do you have an opinion on this process? There was a great fanfare about it at the time. Could it help to solve your problems?
Mr. Brassard: I very humbly participated in a small part of the joint task force on this process that was set up after the events at Oka in order to create this independent body, a task force made up of representatives from the Department and from the First Nations. The joint task force produced a series of recommendations.
Unfortunately, several of the important recommendations were not incorporated into the bill, and the legislation you are referring to, as such, unfortunately includes several aspects that are unacceptable to the First Nations.
But the original idea is a good one, in my opinion; in other words, to have an independent body that deals with First Nations' specific claims and therefore would therefore prevent conflicts of interest. The specific claims could be settled, there could be decision-making authority that at some point could bring pressure to bear on Canada and the First Nations so that they come to an agreement.
I think this is an important aspect so that within a predetermined timeframe, there is an agreement on each of the claims, rather than dragging things out and having the delays as we currently do.
Senator Nolin: Is the reason for it not having been enacted due to the fact that the recommended elements were not included in the bill? Do you think it would be a good idea to reopen this bill in order to amend it or do you believe it would be a waste of time in the end?
Mr. Brassard: I believe that many, if not the great majority of First Nations, do not agree with the bill because it includes elements that are unacceptable to them. Now, what should be done? Go back to square one or to some other point? I do not know, but it is obvious that the First Nations must actively participate in the result that this will bring about, therefore the legislation, the body in question. They must be in agreement with its structure and its way of doing things.
[English]
Senator Watt: Welcome. I remember Bill C-6 well. I had a great deal of problems and difficulties with it because, as you mentioned, many Aboriginal people across the country did not like what it contained.
Putting that aside, if we come up with a truly independent body to deal with specific claims, and that body is at arm's length from the government, it must still be responsible to a ministry. If it is responsible to the Department of Indian and Northern Affairs, I do not think we will see any improvement.
If this committee recommended setting up one independent body to deal with both specific and comprehensive claims, with two dispute resolution mechanisms, and the body reported to a minister of state, perhaps, do you think that body would move the file forward?
[Translation]
Mr. Brassard: That could potentially lessen the conflict of interest, but we are still talking about the Government of Canada. It is very difficult to say that even if the Minister of Indian Affairs is not directly involved, that it remains independent. It remains to be the Government of Canada. Therefore I do not think it would be enough.
The Chairman: There are several problems with Bill C-6. We were working towards 10 million, but in the beginning, it was seven million.
Senator Nolin: You have friends here, in the Senate. Every time a bill was tabled, we were open to your concerns and we tried our best to find solutions. It seemed to me to be a solution, imperfect as it may be. At least it put the framework on the table. The federal government, despite its shortcomings, has also established a legal system since Confederation, a legal system that has its faults, but that has proven to be a very good legal system, when we compare it to others around the world.
Do you imagine a much more legal than bureaucratic process? One of your concerns seems to be the omnipresence of the federal Crown in the articulation of the regulatory framework that is supposed to be independent but that is not perceived as such, in your opinion. If we were to lean more to the legal side, would that represent the beginnings of a new solution?
Mr. Brassard: That would not necessarily be a good idea. The claims are "specific.'' The caselaw is not very developed. There is therefore no well-established corpus or doctrine that would be easy to follow. The department officials who work on specific claims — the people at Justice Canada will confirm this — say that what is at issue are facts from the distant past, very specific situations. Making it more legalistic is not the answer, in my opinion.
When I say that Canada is in a conflict of interest situation and that an arm's-length body is needed, it is in the sense that this body would represent the interests of both Canada and of the First Nations. First Nations must be stakeholders in this body, they must have been involved in its development and in its operation. In this way there would be a greater possibility of having an arm's-length body.
Senator Nolin: It would have to be somewhat like the NAFTA tribunal where each party identifies arbitrators, and where there is a dispute resolution mechanism that is acceptable to both sides. In other words, you are looking for an intelligent arbitrator, someone who knows the nature of the problems and who would be able to draw the most out of the situation to the benefit of each of the parties, so that it works for both.
Mr. Brassard: Exactly. It should be a flexible body, able to deal quickly and effectively with claims so that the parties are satisfied at the end of the process.
Senator Nolin: It would not be perfect, but at least the chosen solution would be acceptable to both parties.
Mr. Brassard: Precisely.
Senator Nolin: And both parties would commit to being satisfied with the results.
Mr. Brassard: It could be a body through which there is always the possibility of a decision being imposed to settle the negotiation if the parties cannot come to an agreement, because we always feel that negotiation is preferable and better than a court decision. If the parties cannot agree among themselves, some kind of tribunal that is part of the arm's-length body could potentially make a decision on the claims. That creates pressure with the parties to come to an agreement.
[English]
Senator Watt: We are trying to find solutions to the problems we have faced for a number of years. I would like to elaborate further on my colleague's suggestion.
We have learned over the years that there is a contradiction between specific claims and comprehensive claims being dealt with by the government. We must come up with an innovative way of handling these matters differently.
The plan must have teeth and the strength to move things forward. If two parties are put together merely on the basis that they cannot agree, nothing will happen. We all know that. When there are differences in society, the differences are not often resolved easily.
There are strong arguments that what is happening here is not helping Canada's economy. We want to eliminate this hurdle and move forward together. I think the only way to do this is to give the Supreme Court of Canada a mandate to settle all outstanding claims, both comprehensive and specific.
What do you think of that?
[Translation]
Mr. Brassard: That solution had never occurred to me, and you will not hold it against me if I hesitate to comment on it this morning.
[English]
Senator Hubley: Welcome. The department's Specific Claims Branch reviews specific claims submissions for completeness and accuracy.
It also carries out what is termed counter research. This must be performed by knowledgeable personnel who have sides of the history of the claim.
What percentage of claims would slide into the category of needing counter research? Are there people within the department that have the knowledge and skill to look at that need? Perhaps you can give me an example of what a counter research would entail. I am wondering how long it delays a claim. That is my bottom line. I leave that with you.
[Translation]
Mr. Brassard: The "counter-research'' or contre-recherche — there must be a better word for it in French — is carried out by Department of Indian Affairs officials when they receive a specific claim in order to check on the content of the claim to see if it is complete and correct and in order to see if the Aboriginal community researchers have done their job properly. Therefore, it is mainly to verify the historical facts.
In my opinion, it is a duplication of the research because for our part, we have already done it. The officials redo the work or the department contracts out the research work to a private sector firm. This clearly increases the delays, but they are not extraordinary delays. The longest delays involve the legal analyses. That is obvious to us.
[English]
Senator Gustafson: You said there were 17 claims that were finalized or passed. What was the formula used to accomplish that? Can that formula be applied to the ones that are not settled?
[Translation]
Mr. Brassard: According to departmental figures, there are 17 specific claims that have been settled out of 110. The usual way of proceeding is to take several specific claims from a given First Nation and then negotiate them within a single final agreement. The department often negotiates several agreements at the same time. What is different in the case of settled claims? It is often because these claims are easy to settle, where the facts are clear, where the arguments are obvious and where Canada's wrongs are obvious. Often, these are the easiest claims to settle first.
The most complex claims are often those that remain in abeyance, that are delayed and are resubmitted with new arguments. Unfortunately, that is the situation but it is also the burden on the First Nations who must invest time and money in these claims over the course of several decades.
[English]
Senator Dyck: Thank you for your presentation. You made it clear where the bottleneck occurs in a process. You talked about time lags as well as the process of accepting and rejecting a claim. Sometimes rejections, I think you used the words, "were like a denial in disguise.''
Can you comment about the process of the relationship between First Nations versus the people producing a legal opinion. Could that be improved so the process of evaluating a claim is somehow made more efficient or sped up in some way?
[Translation]
Mr. Brassard: There is not a lot of communication between the people in the Department of Justice and the representatives of the First Nations. These people do not talk to each others very much. When I alluded to the idea of bargain-rate agreements and acceptance that in the end represents a rejection of the claim, it is that we feel very strongly that people at Justice Canada are there to defend the interests of Canada. If a specific claim deals with various wrongs, the First Nation will come back again and again, even if the claim is rejected the first time. It will table new arguments and new historical facts. We sometimes have the impression that a specific claim is accepted just to get rid of it, but the acceptance deals with a minuscule portion of the wrongs that have been identified in the claim.
[English]
Senator Dyck: As a follow-up to that, does a specific First Nation then have access to records that may indicate what would be a more equitable settlement? For instance, in the Department of Justice, the lawyers probably will not share any of their prior experience or knowledge with you. Should there be a way of accessing that sort of information so both sides of the party have more equitable bargaining power, as opposed to sitting at the table and negotiating?
[Translation]
Mr. Brassard: I think it would be very desirable that the First Nations have access to a corpus of decisions, a corpus of legal opinions. This would allow them to decide on the valuable claim, to know if they should file it or not and to determine the basis upon which they are filing it, on which of Canada's wrongs it is based. If an independent body could be created, it could precisely provide and build this corpus of opinions and doctrines on the specific claims and on the wrongs that are acceptable.
[English]
Senator Dyck: I just had an interesting thought. If there is such a large turnover of lawyers from Justice Canada, maybe you could find them and hire them. They have internal experience.
[Translation]
The Chairman: Thank you, Mr. Brassard, for your excellent presentation. Your recommendation is very important. As for provincial involvement, that is not really acceptable because it is a real issue in this file. Some provinces want to come on board and others have a different position, so it is really not easy.
Senator Gill: I would like to come back to what senator Dyck said when she talked about the high turn over within the Department of Justice and of the fact that perhaps lawyers could be hired to work on specific claims.
Indeed, I am thinking of a case which I would not mention by name, but I can tell you that it involved a deputy minister for the Department of Justice who is defending, among other cases, the Innu nation, which could not have a better advocate. He is very convinced of his case. He must have felt very uncomfortable when he was with the Department of Justice.
The Chairman: I would like to say that DOJ, preparing preliminary Legal Opinion, have 33 and you have 45.
If senators have no further questions, I would like to thank Mr. Brassard for his testimony.
The committee adjourned.