Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 9 - Evidence - Meeting of November 1, 2006
OTTAWA, Wednesday, November 1, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 6:34 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: I call the meeting to order. Good evening. It is my pleasure to welcome you to the Standing Senate Committee on Aboriginal Peoples. I am Senator St. Germain from British Columbia and I am chairman of the committee.
Today our committee continues its special study 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.
As our first witness, we are pleased to have with us the Honourable Jim Prentice. He is accompanied tonight by Mr. Michel Roy and Ms. Audrey Stewart. With them, from the Department of Justice Canada, is Ms. Sylvia Duquette.
We offer a welcome to all of you.
Minister, we know how busy you are. We thank you for appearing before the committee. We have done a lot of work in this field of specific claims and we are anxious to hear your words.
Hon. Jim Prentice, P.C., M.P., Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians: First, let me say how pleased I am to be here tonight. I would like to thank this committee and all of the senators for having the opportunity to appear before you. I was joking with Senator Lovelace Nicholas, because I appeared before the Senate Committee on Human Rights earlier in the week, so she and I have been together more than once this week.
The analysis that you have embarked upon, with respect to specific claims, is an extremely important piece of work. I am not precisely sure what your timeline is to report back to the Senate and the House on this, but the sooner the better. I am anxious to hear what your thoughts are.
I will speak for a few minutes here about the subject generally, but I definitely want to stay for as long as possible to answer questions and to have a bit of a dialogue about some of the important questions that need to be addressed.
[Translation]
I would like to contribute to the committee's work today. To that end, I will share a few general remarks with you and will describe the government's approach to specific claims. I will also try to answer your questions.
[English]
As you are aware, I served with the Indian Claims Commission for over 10 years, approximately eight of those years as co-chair of the commission. I was with the commission from the time it was created in July 1992 until 2002.
During that time, I was privileged to chair or co-chair inquiries into probably close to 60 land claims across the country. In some of those cases, I did so with Senator Gill. It provided me with a depth of knowledge, insight and passion about the specific claims process and into the resolution of claims.
The months that I have spent in my current position have strengthened my conviction that, while the objectives behind the specific claims program are sound, the Government of Canada must do a better job of dealing with these claims.
I have categorically said publicly that I intend to retool the specific claims process to make sure that it fulfills the needs of First Nations citizens in this country and other Canadians, to seek justice and fairness in the resolution of claims.
Indeed, in addressing the issues around the resolution of specific claims, this is a significant part of what will be, in my time as minister, a new approach to Aboriginal issues. I am committed to adopt measures that will resolve the existing backlog of specific claims in order to provide justice to claimants and certainty for governments, industry and non-Aboriginal people.
My colleagues at the table can enlighten you as to the numbers of the backlog of claims. Even the term "backlog'' is something that warrants discussion. At the time I was starting with the Indian Claims Commission, the accumulated claims inside the Government of Canada system were, as I recall, probably in the neighbourhood of 200 to 300, but less than 300. Over the course of the last 15 years, those claims have swollen to over 800 claims inside the federal system. That is unacceptable and something needs to be done about it and I intend to address that.
I have long been a strong advocate for the need to modernize the process that is in place to settle specific claims; and as a member of the Standing Senate Committee on Aboriginal Affairs and Northern Development while in opposition, I moved for an investigation into that backlog of specific claims. That investigation did not go very far very quickly with the parliamentary committee. That committee was unable to embark on this analysis in the amount of detail that you will in your deliberations.
I have stated many times before that the need for change, in the way that we deal with specific claims, exists and I am going to re-emphasize that now.
[Translation]
Specific claims regarding past First Nations grievances. They deal with Canada's legal obligations to the First Nations with regard to the debts for which it is responsible and which must be settled. The primary objective of the program is to allow Canada to fulfil its commitments and pay its debts.
[English]
These are debts on the part of the Government of Canada. There is no other way to explain it. These are debts, in cases where there is an outstanding lawful obligation to First Nations, that the Government of Canada must address. I believe it is fair to say, and I believe you know, that these are also often historic grievances that go back many years in Canadian history; in particular, to a darker era between probably the 1910s through to the 1950s, when successive governments on repeated occasions transgressed their obligations owed to First Nations citizens in respect of land and malfeasance of lands and monies.
In dealing with claims, Canada must review the facts to assess whether it owes a lawful obligation to First Nations. Where such an obligation is established, Canada and the First Nation attempt to negotiate a settlement that provides the First Nation with fair compensation to resolve the claim once and for all. Negotiation is the preferred model for resolution. Court proceedings are always there, of course, as an alternative; and the specific claims process, as it was envisioned in the 1980s, really defined an alternative to that process.
You will be aware that there have been other models that have been put forward for consideration over time with respect to the specific claims process. I could take you back to a bill that was put before the House of Commons by the Diefenbaker government that related to the creation of an Indian Claims Commission, as I recall, in 1961. Since that time, the Canadian Bar Association has opined on alternative solutions to resolve this. The Assembly of First Nations has repeatedly proffered different models by which the claims can be resolved.
The process that we have is essentially the one that was defined in the 1980s by the Government of Canada under the specific claims policy outstanding business.
An important underlying principle of the program is the premise that resolution of these claims is best achieved through negotiations and in fact the program was really set up as an alternative dispute resolution model to provide First Nations with an alternative to proceeding to court.
[Translation]
On the contrary, the settlements negotiated occurred as a result of the concerted efforts of the parties. Cooperation can consolidate links, and the negotiation of settlements is more likely to meet the interests of both parties. Negotiation leads to winning solutions for all and makes it possible to devote major resources to the community rather than to the courts.
[English]
In contrast to litigation, negotiated settlements are jointly developed by the parties in the process of working together, and, from what I have seen over the years, this certainly strengthens relationships. Negotiated settlements are the best way to go, in terms of building relationships and achieving economic development objectives and so on. They can certainly lead to win-win circumstances.
However, fundamentally, when the negotiation process does not work, we need to have recourse to solutions and a system that is fair, that is just and that can move these claims forward in an expeditious way. There are very few people who would suggest, today, that we have such a process in place.
The objective and underlying principles of the program are sound. I believe the test that is contained in the policy itself, namely, outstanding lawful obligation, in my view, is an appropriate test. That should be the measure by which Canada governs the obligations that it owes. This has certainly been a straightforward and simple measure in the past that has helped us resolve claims.
The system is under enormous pressure. There is no doubt about that. The number of claims has doubled since 1993, and the system has been crippled by a large and growing backlog of claims. The legal environment has complicated matters enormously, and it is fair to say that it is difficult for all of the parties to these claims, the Government of Canada included, to keep up with the requirement for legal analysis, opinions, and assessment of the facts.
In my view, there are a number of factors that have contributed to the current state of affairs. First, the process itself, by which these claims are dealt with, has been largely stagnant since 1991 and has not kept pace with the new trends in dispute resolution.
For example, we have received a wide range of claims from those that are rather small and routine — if anything can be described as routine — to those that are enormous, yet all of these claims at the present time undergo the same degree of analysis and the same degree of review. That is to say, a claim that is worth less than a million dollars receives the same kind of treatment as one that is worth over $100 million.
Also, as someone who served on the Indian Claims Commission, in 1991 there was certainly an expectation that the Indian Claims Commission — formerly called the Indian Specific Claims Commission — would evolve through a process of gradual constitutional evolution, if you will, into a more fulsome body for the resolution and adjudication of claims. Again, for reasons that we can discuss, that has not really happened in that way. That is something that warrants discussion.
Also, resources that were earmarked for specific claims in the 1990s were cut through program review and similar initiatives in the mid-1990s, and, as a result, there has been a shortage of staff to review the claims and a shortage of staff to undertake negotiations. Frankly, a claim can sit for literally years, waiting for the assignment of a lawyer to conduct a legal assessment before the First Nation hears whether or not it is accepted by the Government of Canada for negotiations. I am aware of cases, in the time before I became minister, where First Nations would submit a claim and it would take as long as seven years to receive a response from the Government of Canada that a lawyer had been put on the file, had reviewed it, and could offer an opinion on behalf of the Government of Canada.
Clearly, that is not acceptable.
[Translation]
It was also during this period that the government tried to implement a new institution tasked with giving meaning back to the specific claims program.
As we all know, the Specific Claims Resolution Act was adopted in 2003, but was not applied because it does not have the support of the First Nations and it would, consequently, be completely ineffective as a dispute settlement mechanism.
[English]
Specifically, Bill C-6, a bill that the previous government worked on, is a bill that eventually did clear the House of Commons, but has never been proclaimed into law. Bill C-6 is a piece of legislation that, certainly in the eyes of the Assembly of First Nations, is fundamentally flawed.
Shortly after becoming minister, I discussed this issue with National Chief Phil Fontaine; he has strong feelings about it. I assume he will be coming to meet with you. I certainly hope he will.
I assured him, as the incoming minister, that I felt Bill C-6 was similarly flawed and that I would not proceed unilaterally with it. It would require either replacement by other legislation or, at a minimum, amendment that would achieve the objectives for a system that is fair, just and has integrity and credibility in the eyes of both First Nations citizens and other Canadians.
I am probably not the best person to walk you through the tortured history of Bill C-6; there are other more able people who can do that.
In the long term, I feel that we must re-examine our overall approach to the resolution of Aboriginal grievances; the structure and purpose of institutions such as the Indian Claims Commission; the mandate of the Commission and whether that mandate is sufficiently broad enough to enable it to usefully move claims forward.
Given that specific claims often involve multiple parties, such as federal departments and agencies, provinces and the territories, we must ensure the process accommodates the participation of those stakeholders.
A number of earlier witnesses have put forward interesting proposals for longer-term change. We need to examine those issues.
At the same time, there is the immediate practical problem that my department and the Department of Justice Canada must deal with and for which we have assumed responsibility: namely, the huge backlog undermining the credibility of the government's commitment to the resolution of these issues. I can tell you first-hand that this enormously increases frustrations on the part of First Nations. Simply deferring those issues to litigation is not really the appropriate solution.
[Translation]
I am convinced that the processing of specific claims should and could be an example of excellence for the government. To achieve this goal, I believe that we should delve further into certain current methods and practices. The increase in public resources reserved for the processing of specific claims is, of course, part of the answer, but it is too early to say what will be the necessary quantity of resources and what they will be used for.
[English]
I encourage this committee to consider several larger issues. Although it is important to take immediate steps to deal with the backlog of specific claims — something I am determined to do — it is also time, I feel, for us to consider what the longer-term strategy should be for the specific claims process in this country. This includes the far-reaching policy and institutional changes that may be required to move forward in a manner that will help place First Nations people in a better position to take advantage of the opportunities presented as Canadians.
I say this because my motivation to accelerate the rate at which Canada settles claims is not solely because I wish to see a more efficient governmental system. My desire is fuelled by the notion that settled claims not only resolve long- standing historical grievances, but they also foster tangible and lasting improvements in the lives of First Nations peoples.
There are many cases, which you may be aware of, where specific claims settlements do help people move forward. They provide economic opportunities for First Nations, and they have a very important role to play in terms of setting historic grievances aside as well.
These are many of the reasons why the work of this committee is so valuable and why I am eager to receive your advice and guidance. The system, I have said, must be retooled; it is in urgent need of reform. I am looking forward to your recommendations.
If I might say, Mr. Chairman, I believe as you examine this issue, you should not hesitate to look back on much of the work that has previously been completed. Commission work has previously been undertaken not only by the Indian Specific Claims Commission, but also by the Canadian Bar Association and other independent commentators who have examined this issue and have asked some very difficult questions.
At the end of the day, the failure of the previous Government of Canada and First Nations to reach an agreement with respect to Bill C-6 lies inherently in some of those difficult questions. Some of those questions include whether the Government of Canada finds itself in an inherent conflict of interest in adjudicating these claims; what degree of independence from the Government of Canada is required for that body to have the requisite credibility; how the individuals serving on that body should be selected; what role and responsibility the Government of Canada should have in this process. Should the Government of Canada be the party that is the defendant, if you will, in the claim? Should they be the party participating in the adjudication? Should they be the party providing funding?
All of the above are very fundamental questions. Frankly, they are questions that have been circling around this issue for over 50 years now in our country. I welcome your contribution toward getting to the bottom of these issues.
The Chairman: Thank you. The expectations are high as far as results from your ministry. I make no bones about it. After ten years on the Indian Claims Commission, you obviously bring unique experience to this department.
Others at the table, such as Senator Gill, with whom you have worked previously, feel the same way: If we can come up with a timely and explicit report, hopefully, you will be able to act on it. I know, having been in cabinet, the challenges that face you as a cabinet minister. We are convinced you can accomplish this.
There is a pattern developing, which I will not go into because I would like to permit questions from senators. However, we operate in a very non-partisan manner. The members of this committee, I can tell you, are very dedicated to the cause of seeking out results and not seeking any political gain at all.
Senator Sibbeston: Thank you for appearing before our committee. I appreciate your past experience.
In the last few decades, I can boldly say, I cannot think of another person who would be more experienced than you in taking on the job of Minister of Indian Affairs and Northern Development. Your past ten years of experience with the Indian Claims Commission and eight years as co-chairman, obviously puts you in a very good position. Now, as Minister of Indian Affairs and Northern Development, you are placed highly within the structure of government as well as in your various roles as chairman of committees.
If ever there was an opportunity to accomplish something specific about a problem we have, the elements lie with you and with our interest in resolving issues.
I compliment you on your speech tonight. It was interesting. As you say, you approach the task with knowledge and passion about the issue.
One simple solution is to simply throw more resources at the problem. There is tremendous delay. The process is all in-house within Indian and Northern Affairs Canada, with the Department of Justice Canada playing a role. Of the 629 specific claims under review, over one half are stuck in the Department of Justice Canada, awaiting their analysis and scrutiny to see if they are valid or not.
Is it a matter of simply providing more resources, personnel and knowledgeable people to speed along the process? We have heard from a number of very knowledgeable and experienced witnesses working in the specific claims area — people from Manitoba and Saskatchewan, and one from Quebec last week — that say the process is in-house. First Nations people come hat in hand to the federal government, who are ultimately the judge and jury making the decision. Native people are at a great disadvantage; it is not an independent process.
Witnesses testify that we need an independent body. Should we take this approach? In 2003, we dealt with the Specific Claims Resolution Act. I am sure you are aware of that. The Assembly of First Nations and other organizations were involved with the federal government in setting up a task force of which the Specific Claims Resolution Act of 2003 is, in part, a result. We dealt with that bill and heard evidence that the task force felt there were deficiencies in the bill.
However, as a committee, we eventually passed it. We believed the approach provided under that act would incrementally improve the specific claims system. We improved the bill as much as we could and passed it, and it has been sitting in government since then. It has not been proclaimed.
We will obviously hear more evidence and we will ultimately make decisions and recommendations to you as to what could be done in this area. How open are you to ultimate answers, or would you be satisfied with something less?
Mr. Prentice: You were very kind in your opening comments and I thought the other shoe might drop. It is a very fair question.
During my time with the Indian Claims Commission, I learned that the Indian Claims Commission per se, as an example of incremental constitutional change, was a very important step forward. It was one of the only post-Oka improvements in this country. It had a glass ceiling that it bumped up against very quickly.
The Indian Claims Commission proved the value of an independent adjudicative responsibility here. It was an incremental step. It was a bit of an experiment, but, particularly in the early years, it proved its worth. It was able to carry out reviews, travelling to First Nations communities and establishing a high degree of expertise, and also credibility and integrity, amongst First Nations people. That is important because this is the inherent problem with Bill C-6: If there is not buy-in from First Nations communities as to the integrity of the process, it will not work. The specific claims process is an alternative to litigation. If it is lopsided or one-sided in its construction, First Nations will not have confidence in it and they will not use it. The alternative will be litigation and unhappiness.
The challenge is that we have not gone beyond the 1992 version of the Indian Claims Commission and what it should look like. You are, as senators, well positioned to ask these very important questions: What should an independent body look like? What degree of independence should it have? If it is independent, how do we agree on the people who should have stewardship of it? What financial parameters would it operate within?
We quickly come back to the inherent difficulty of the multiple roles that the Government of Canada currently fulfills in the process: The government is the body that is responsible for the claim; that solicits the legal opinion; that processes the funding application from the First Nations so they can do their research; and that selects the commissioners on the Indian Claims Commission.
Ultimately, it is the minister who then adjudicates the claim. It is no secret that for 50 years people have been saying that a system that is so constructed cannot succeed. You are in a position to look at some of the very learned things that have been said about this and come up with recommendations.
Balancing that is the practical reality that this system needs to work. It needs to have fiscal parameters. It needs to be an institution and a system that protects the interest of both First Nations citizens and non-First Nations citizens in this country.
I am not sure I have answered your question, but you are on the right track.
Senator Sibbeston: Are you completely open to solutions that will, once and for all, definitively deal with the backlog and the issue of specific claims, and leaning toward an independent body at arm's length from government that can make final decisions?
Mr. Prentice: It is not my decision alone. I am open to consider all of the alternatives.
Senator Hubley: As a Senate committee, we do not often throw bouquets, but I would like to echo what Senator Sibbeston has said, in that generally our witnesses have had great faith in you as minister and in the skills that you bring to your position.
Your presentation has certainly addressed many of the issues that our witnesses have brought and described to us during our hearings. Some of them have brought solutions as well. An independent claims commission or tribunal seems to be a recurring theme from many of our witnesses. People may hope that this will be the solution. In fact, maybe we do not know enough about what this body will look like, as you said, to include that in our report; but it seems to be a recurring theme that we will have to address.
We also heard that Canada has a moral and legal obligation to settle these claims. That is the bottom line here. It has been suggested to us that a new ministry might be created just to address the First Nations specific claims. I do not want to put too many questions at one time, but I would like you to give us some idea if these could in fact speed up the process and result in better representation, better negotiation with First Nations or the people who are involved.
We heard many times that the Government of Canada was in conflict of interest. We also heard about funding. As you know, the claims have gone from between 200 to 300 up to 800 presently. Has the funding to the department followed and can it service those?
Mr. Prentice: There are quite a few questions there. Thank you for the bouquet; I did not get many of those today.
To go back to Senator Sibbeston's question, we need to be open-minded about this. There is a certain Canadian genius for compromise, creativity and common sense solutions. At the end of the day, in cases where they are legitimate, they are moral and legal obligations on the part of the people of Canada toward First Nations.
I am not saying that all claims that are filed are meritorious. The system needs to determine more quickly those claims that are not meritorious and get them out of the system, because they are absorbing resources that should be applied to the claims that do have merit. Even if you examine the history of the Indian Claims Commission, you would find that there are more than a small number of claims that have not been accepted. The system needs to have the capacity to do that.
In terms of your comments about resources and how this is housed, I do not feel we should focus too much on where the claims, as a process, should be housed in the Government of Canada. The Government of Canada has a responsibility, among other things, to put forward the position of the people of Canada on these claims — I do not like the term defendant, but to be essentially the party defending the conduct of the Government of Canada.
In any scenario, the Government of Canada has to be a centre of excellence to do that. It needs to have good lawyers and good people. There needs to be a strong institutional presence inside the Government of Canada to be the defendant, which needs to be properly resourced and properly housed somewhere. You may wish to give an opinion about where it should be housed, but I do not feel that is, fundamentally, the most important point.
The bigger question is, as you mentioned, the whole issue of conflict and the independence of a body. The critical element is that the system requires a body that is independent of the government, in some degree, to be able to measure progress, to police progress, to push the process along and to draw the parties together.
Senator Hubley: When was the last time that you had a question concerning a land claim in the House of Commons?
Mr. Prentice: This afternoon, but I am not sure what you are getting at.
Senator Hubley: That was it. I am wondering how important this is to Canadians. How important is the fact that we address land claims to the Canadian people?
Mr. Prentice: I believe it is very important. There are very controversial situations that happen in our country, like Caledonia, that have a bearing upon public sentiment both ways. By and large, I feel there is a broad sentiment in Canada that historical grievances that have merit should be resolved.
The process operates outside of public scrutiny, if you will; it is a system that currently operates without many other people involved, beyond the parties who are directly involved in the dispute. I do not receive many questions in the House because I do not believe even many parliamentarians know much about the specifics of individual claims.
Senator Dyck: You have made it clear in your presentation that there is a critical short-term need, and also a need for some long-term solutions with respect to specific land claims. You also mentioned that there had been cuts to the staff in the Department of Indian and Northern Development during the 1990s. My short question would be: Do you believe that by increasing resources, you can actually effectively relieve the backlog? Would the size of the cutbacks of the 1990s have been large enough to account for the slowdown, assuming that it slowed down more after the cuts to the budget?
Mr. Prentice: I am happy to leave this with you. It is a graph that shows the growth of the inventory. It shows a line going up almost exponentially since about 1991-93, perhaps.
Certainly, I will deal with the resource issues to ensure that my department is properly staffed to do this. Fundamentally, you have to come back to your purpose here, which is to look at the system and see if the system is functioning properly.
I am prepared to deal with the resourcing issues, but the first question is: How is the system going to function? There are high expectations, to go back to the chairman's perspective. People know that I have been involved in this before and I have an understanding of it.
It is difficult for me to go to any First Nations community or meet any chief who does not have a specific claim in the system that he wants moved forward. Dealing with the backlog is an enormous challenge.
Senator Dyck: Is it your belief that we can go back to Bill C-6 and work out an agreement with the various First Nations or with the Assembly of First Nations to create this independent body necessary for the long-term strategy? Is it possible to modify that in a way that would be acceptable?
Is that a preferred route or would it be better to start from scratch — start up a new series of consultations and devise another mechanism whereby we can create this independent body?
Mr. Prentice: That is a fair question. I may not be the best person to answer it. I would encourage you to get some of the lawyers here from the Department of Justice Canada, who actually drafted Bill C-6.
I am happy to go either way. If Bill C-6 can be amended reasonably quickly, I am happy to do so. If the alternative is an entirely new legislative framework, I am prepared to go that route.
I am concerned, though, about the time that will take. The process to arrive at Bill C-6, as a piece of legislation that does not work, was about five or six years long. At the rate at which these claims have been piling up, we do not have five or six years to go through this discussion another time. We need something, we need it quickly and we need it to start working effectively.
Senator Dyck: For clarification, when you said you were concerned about the time, did you mean concerned about the time that would be needed to start a new piece of legislation?
Mr. Prentice: Yes.
[Translation]
Senator Gill: I would like to greet a few of the commissioners from the Commission who are present here today — some are new — and more particularly Anne Chamas, who worked for the commission and is known to Mr. Minister.
We have discussed at length the commissions, results of the commission and our frustrations while you were Commissioner. It is difficult to ask questions about things that have never been dealt with or discussed before or that were not a source of frustration in the few years that you were the Commissioner.
I will touch on two things. We know that the process in which claims must be put forward is often very long and with no end, no results.
I remember that it was said that the formula used at the time was not adapted to our needs. The Department of Justice was criticized — perhaps you did not, but I did — for taking an enormous amount of time, as was the Department of Indian Affairs, which was not succeeding. Budgets were also very tight.
One point must be emphasized, and that is, that regardless of the formula we come to, it must be carried out by the Aboriginals and by the First Nations themselves. They must be directly involved in the claims process.
At what level? I do not know. But it certainly takes a formula that allows an independent organization to process the claims, and that would be comprised of First Nations peoples, as well as others.
Second, I remember that one of the handicaps that we had was that we were limited by existing budgets at the time. I got the impression that the department and persons responsible did not want the claims process to move too quickly because the budgets were tight.
We must roughly calculate the amounts of money involved in the land claims currently on the table and those that will eventually be examined, and ensure that there are settlements as quickly as possible.
Financially, this does not mean settling all these claims right away, but it is important that the groups having made claims or planning to make claims know that they have been or will be received, that they are counted, that there were agreements and that the money will eventually be paid.
It is like any other settlement we might run into or like any other conflict. When we talk about land claims, people see that as a big thing and it frightens everyone.
But it would be good if we could succeed at quantifying the claims and amounts involved, and if we came to some sort of agreement in order to proceed with the settlement of these agreements.
Do you believe that is possible?
Mr. Prentice: I appreciate your question. With your permission, I will speak in English.
[English]
You have raised a number of points, Senator Gill. You and I served together on the Indian Claims Commission as colleagues and dear friends, and I believe we learned a lot from each other in those years. There is not much that I have learned about this that you have not also experienced.
It is possible to quantify the claims, and it may be important for you to make a recommendation on that. Perhaps these claims should be quantified such that the global total is known and is reported to Canadians on a regular basis, so that they have a sense of the amount of the outstanding lawful obligations owed in specific claims. You are right that the process needs to work through those in an orderly way.
You spoke about the frustrations of working through the claims process. I feel we would both agree that in many cases the process worked well and the commission was able to carry the Government of Canada and help the First Nations get to the end game. Many claims have been settled as a result of that good work, so we know the process can work.
The challenge has been keeping up with the volume. I am not categorically saying that the resource cuts made in the 1990s relates to that, but certainly at the time that the number of claims going into the system was increasing, the available resources were decreasing. We see the consequences of that.
We both learned that one difficulty with the current claims system was that the commission was structured as a mediative sort of task force and, at some point, that mediative road would come to an end and the parties would not agree. Even with the help of the commission, there would be no binding decision, because the commission did not have the power to make a binding decision, and the parties would not accept an arbitrated solution.
Any independent body that is doing this sort of work, if it has credibility and functions for both parties, must have the capacity, at the end of the day, to make decisions that both parties will have to live with. It may be that before that process starts, the Government of Canada and the First Nations must agree to be bound by the decision of the independent body. The independent body does not currently have the authority to make a decision, so a claim could work its way through the process for tens of years, not be resolved, and then have to move over to the litigation process.
We are back to fundamental questions about how the body is structured and what its responsibility is: whether it is just a mediation body, whether it is a binding arbitration body, or whether it can make decisions that people have to live with.
Senator Peterson: We have been trying to get a handle on the contingent liability that the country faces. It would be good to know, so we have a benchmark.
Knowing how large that number will be, and trying to deal with the claims all at once is almost impossible. Some specific claims have been identified, agreed upon and quantified, but not settled. Could your department start the process by settling some of the specific claims that have been agreed upon by getting $1 billion from the Treasury Board of Canada Secretariat? Would that not show some progress? The First Nations would then see that there is movement; that we have started down the road of concluding this.
Mr. Prentice: The way in which the process works is that first there is a process to decide whether there is an outstanding lawful obligation, that is, to validate the claim, if you will. That is the part of the process that is taking up extensive time. Thorough Department of Justice legal opinions are solicited on each and every claim as it comes through the door.
The program is set up so that, as a claim arrives at the threshold of the Government of Canada, the government solicits a legal opinion on whether we have an outstanding lawful obligation. The answer of yes or no comes back, sometimes within a year, sometimes within 10 years. The process of quantifying the claim happens much later.
I do not feel it is realistic for the Government of Canada to accept the claims and say, "Yes, you have a claim, it is valued at $10 million and we will book it.'' Really, the resolution of the quantum of the claim is not reached until much later.
That is not to say that the Government of Canada cannot, on a best efforts basis, say that their assessment of the total debts that are owed as specific claims are X billion dollars or whatever. That is what I would recommend; but we still have this problem of validation, followed by negotiation, to get to the number.
Senator Peterson: Are there claims out there where the amounts have been identified, but they have not been paid?
Mr. Prentice: Not to my knowledge.
Senator Peterson: Then take the billion dollars and allocate it to more resources to expedite this. Otherwise, we will never get anywhere.
Mr. Prentice: Your point is that otherwise they will never get caught up. To be clear, when I talk about a backlog of claims, there are not any claims that I am aware of where the Government of Canada has negotiated a settlement, but the Government of Canada cannot find the money to resolve it. That is not happening. It is more that there is a system here, which is supposed to be an alternative to litigation, that has got 800 claims backlogged in it.
Senator Gustafson: Minister, in your experience, is the issue of federal-provincial responsibilities on behalf of the government a major problem? I served an area where there were five reservations and some settlements were made, but it seemed that the municipalities were caught in the middle of whose responsibility different matters were. Is that a major problem for you?
Mr. Prentice: I do not believe that is the cause of the backlog, but there are issues there that we all have to keep an eye on.
There are two different kinds of governmental challenges, if you will. Most of the claims involve an outstanding lawful obligation owed by the Government of Canada to a First Nation. That may or may not bring in provincial involvement. I say that because, for example, a treaty land entitlement claim in Alberta where the band is saying the outstanding lawful obligation is that they were not given the amount of land promised under the signed treaty, brings in the Government of Alberta; because it owns the public land and it is impressed with the trust that the federal government can draw upon it to settle land claims. By definition, the provincial government is brought to the table.
There are some other grievances that are strictly between a First Nation and the Government of Canada, which do not involve a province. Increasingly, the more difficult claims — especially in the numbered treaty areas across the Prairies — do involve provincial jurisdiction; so at the end of the day, in negotiations, the province is at the table.
The second level of complexity involving government is that, in many of the cases, there is land that is given to a First Nation as part of the settlement, and the land is taken out of circulation as land in the municipality. It is taken out of the tax base of the municipality, especially across the Prairies. The municipalities then expect compensation from the federal government, because they have taken X acres of land out of the municipalities tax base. The discussion that inevitably follows is that they feel they cannot meet their servicing requirements because their tax base shrinks.
There is a separate issue to all this, which I am not sure is really where you want to focus your attention, but there have been problems on the implementation side and the Government of Canada has been roundly criticized by the Auditor General.
In Manitoba and Saskatchewan, there have been hundreds of thousands of acres of land that have been identified as part of specific claims settlements, and there have been enormous backlogs in getting that land delivered — in just living up to the terms of the settlements that were agreed on.
That is quite a different problem; that is a resourcing problem. Again, it does not relate to this backlog of 800 claims.
Senator Watt: I do not want to dwell on Bill C-6 too much, because we have dealt with that in the past. I see some identifiable people who were here at the time as witnesses.
Since Bill C-6 arose out of the working group that was put together between the First Nations and the Government of Canada, one of the issues we heard at the time we were dealing with Bill C-6 was that there was an agreement on how it was going to be structured, then the department representatives turned around and went ahead on their own. The mistrust began from there.
I would like to hear your point of view, if you would be prepared to set up a working group and to start drafting legislation. I feel we have heard enough from witnesses. Would you be inclined to give us a mandate as a committee to begin drafting the legislation with the First Nations or will you do that within your department? How will that be done if you move in the direction of setting up an independent body? I also have another question.
Mr. Prentice: Would you like me to answer that question first?
Senator Watt: Yes.
Mr. Prentice: First, obviously I was not involved in Bill C-6 and the breakdown of trust that you talk about. I do not know if that happened or not; I do know that Bill C-6 is structurally and philosophically flawed and will not be acceptable to First Nations. Either there has to be a pretty massive change to it, or we arrive at a new bill.
I cannot tell you how to discharge your responsibilities. I can tell you, though, that what will be more useful to me is a clear and focused recommendation from yourselves on what needs to be done. I will make sure it happens.
I am not saying we will agree on everything, but I know that the system has to change. I know it has to be retooled, and I have committed to do that. If you provide me and Canadians with some guidance on what needs to happen, I will take it from there.
I would prefer that to getting involved in an extensive working group between the Senate, the House of Commons and a minister. I believe that is a recipe for deadlock. I need your help in terms of sifting through a lot of reports, a lot of independent analysis of this, and telling me what you believe should be done, because I respect the people around this table.
Senator Lovelace Nicholas: My question is about Crown lands. These are lands set aside for First Nations people. Do you feel that if they had access to these lands, there would be less land claims going on? We do not have access to the Crown lands set aside for us.
Mr. Prentice: That probably takes us into a different discussion, but specific claims are very focused, directed acts of malfeasance or nonfeasance — theft, incompetence by the federal government against a First Nation. They tend to be grievances that are focused on something that happened in history, where a First Nation was specifically wronged in relation to a piece of land or the signing of a treaty. Once we get into comprehensive claims and access to Crown lands, I believe we are into much different issues.
The problem with the backlog we are presently experiencing relates to specific claims. That is where I feel we need to direct our attention. I do not know if National Chief Fontaine has appeared before you yet.
The Chairman: Yes, he has.
Mr. Prentice: He has a lot of experience with this. I have enormous respect for him. His voice is one that needs to be heard on this, and it is an issue that he and I speak about often.
The Chairman: Thank you. As I said earlier, and I believe you cited this in the wonderful presentation you put forward, when you resigned from the Indian Claims Commission you said the settlement of specific land claims is fundamentally a human rights issue. As we sit here tonight, we have a moral and legal obligation as a government and as a country to deal with these issues on behalf of our First Nations people. I hope we can deliver the report.
As you can see, we operate in a very non-partisan manner. We have excellent experience at the table within the members of this Senate committee. I hope with their wisdom we can provide you with the tools you require to accomplish what I know you would like to accomplish.
We will resume our meeting with our next witness. Before us is the Chief Commissioner of the Indian Claims Commission, Ms. Renée Dupuis.
[Translation]
The Indian Claims Commission, the ICC, was created in 1991 as a result of the slowness of the Department of Indian Affairs to settle specific claims. Since then, First Nations whose specific claims were denied officially or de facto, have been able to choose to present their claims to the ICC.
Ms. Dupuis was appointed Commissioner of the Indian Claims Commission in March 2001, and then Chief Commissioner in 2003. Ms. Dupuis, welcome. Over to you.
[English]
Renée Dupuis, Chief Commissioner, Indian Claims Commission: Good evening. Thank you for inviting me to appear before you.
In this study, the committee is looking at a number of very important questions about specific claims. Your findings and recommendations on the issues that have been identified will be of interest to all parties working in this area.
As a frame of reference for your study referring to the status of the Indian Claims Commission, ICC, it is an honour for me to present to you a preliminary outline of the mandate and the work of the ICC.
I have provided the committee with a document summarizing key information regarding the ICC's activities.
[Translation]
If you would allow me, I will skip the historical aspect, as the minister preceding me has already gone through many of the elements. I would, however, like to remind you that the Indian Claims Commission is the direct result of a land claims issue that exploded as a problem and then as a crisis in Oka and Kanesatake in Quebec in 1990. It was after these problems that the federal government announced its indigenous program in which it committed, notably, to accelerating the settlement of specific claims.
[English]
In 1991, the Indian Specific Claims Commission, presently known as the Indian Claims Commission, was created by an Order-in-Council as a commission of inquiry under the Inquiries Act. The mandate was revised in 1992 and additional commissioners were appointed.
It is interesting that the preamble of the Order-in-Council notes this is an interim process to review the application by the government of the specific claims policy. In fact, commission work is carried out on the basis of that policy.
From 1991 through 2004, the Prime Minister was designated as the appropriate minister overseeing the ICC for purposes of the Financial Administration Act. In November 2003, as discussed earlier, Parliament adopted an act creating a permanent body for mediation and claims adjudication.
Effective July 2004, the government made a decision and designated the Minister of Indian Affairs and Northern Development as the appropriate minister for the purposes of the Financial Administration Act.
Since we are an independent commission, we have made arrangements with the Human Rights Commission for the provision of corporate services.
[Translation]
Currently, the commission has five part-time commissioners, including myself, Chairperson of the Commission. The commissioners come from all regions in Canada.
[English]
Commissioner Daniel Bellegarde is an Assiniboine Cree from Little Black Bear First Nation in Saskatchewan and was co-chair of the ICC from April 1994 to August 2001.
Commissioner Jane Dickson-Gilmore, who is present tonight, is an associate professor in the law department at Carleton University in Ottawa.
Commissioner Alan Holman is a writer and broadcaster, who resides in Prince Edward Island.
Commissioner Sheila Purdy, who is also present tonight, is a lawyer living in Ottawa. As you may already know, I am a lawyer residing in Quebec City.
A staff, consisting of 51 people, supports the ICC in its work, and they are professional and hard-working individuals.
[Translation]
Before the Indian Claims Commission was created, the First Nations could not challenge the government's decisions, unless they went before the courts. The commission gives the First Nations the possibility of obtaining an independent examination of government decisions and, therefore, an alternative to the judicial route.
[English]
Our unique role requires us to respond to requests made after the minister has made a decision to either acceptor reject a claim.
More specifically, our mandate is to review the minister's decision upon the request of a First Nation to hold a public inquiry. Either the minister has rejected the claim, or the minister has accepted the claim, but there is a dispute over how to establish compensation. That is the first part of our mandate.
The second part of our mandate is to provide mediation support at any stage of the claims process to assist the parties in reaching a settlement, upon mutual agreement of a First Nation and the government through Indian and Northern Affairs Canada.
The ICC typically completes its work on an inquiry or mediation within two to five years. Since its creation in 1991, as of today, the ICC has concluded 69 inquiries and 11 mediations.
The Indian Claims Commission carries out its work in all parts of Canada. In the current fiscal year, it is conducting inquiries and offering mediation services for the resolution of claims from First Nations communities in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick and the Yukon.
At this time, we are advancing 38 inquiries and we have 26 active mediation files.
[Translation]
We launched a project to index the summaries and key words to facilitate access to the results of our work over 15 weeks of activity. I will send a copy of this publication to the committee as soon as possible, which will include a summary of each of the inquiries, the mediations that we concluded and an index of key words to facilitate searches in the text of the summaries.
The purpose of this very important project, which benefited from the collaboration of many of our employees and commissioners, in addition to the usual work of our commission, is to provide the parties — the First Nations and Canada, but also researchers, decision makers, legal officers and interested persons — with a tool giving them access to a host of historical and legal information containing Indian Claims Commission reports. We hope that this information will help senators to better understand the unique work and contribution of the commission.
[English]
Our inquiries follow a well-established and accepted process. A First Nation with a rejected claim, or an accepted claim where a dispute has arisen over compensation criteria, writes to the ICC to request an inquiry.
The ICC assesses the claim and makes a decision either to accept or reject the request. When the request is accepted, in preparation for the inquiry, the ICC brings representatives of the First Nation and the government together face to face to discuss the rejected claim, plan research and to clarify legal issues.
An important part of our process is a hearing by commissioners at the First Nation to hear oral testimony from elders and other community members. Following the community visit, lawyers for the First Nation and the government provide written and oral submissions on facts and law. Based on the evidence and the arguments presented during the inquiry, commissioners release their findings and recommendations to the parties involved in the inquiry.
With regard to our mediation process, the ICC provides facilitation and mediation services at any stage of the claims process that are culturally sensitive, informal, non-threatening and flexible.
By agreement of the parties, the ICC can provide any form of dispute resolution service to assist in settling a claim. The ICC mediation services include facilitating the negotiation process, arranging for or providing mediation when an impasse arises, coordinating joint studies and monitoring the party's decisions and undertakings.
Let me quickly summarize the four principles that guide our activity. First, and most important, are the principles of independence and impartiality.
As an independent commission of an inquiry, these critical principles guide our inquiry process from the very start right through to our recommendation as to whether or not there is an outstanding obligation due to a First Nation from the Government of Canada.
With regard to mediation, no qualities are more important than impartiality and independence as we attempt to bring parties together to reach a satisfactory agreement.
[Translation]
The second principle: equity and natural justice. In many cases, our inquiry process gives the parties an important opportunity to meet. In fact, the examination of the claim made before by the government only deals with document analysis. The equity in our inquiry process requires giving appropriate timeframes to the parties to present their brief in turn.
Our process is focused on the community. We ensure that the parties take part in the planning of the inquiry. Then, the staff goes to the community to explain the process and question the elders. The committee in charge of the inquiry then holds a hearing in the community. Subsequently, legal advisors write their brief based on the testimonies of the elders and the documentary evidence, then present their arguments to the committee. After deliberation, the committee produces its report and makes recommendations.
[English]
The third important principle is that of openness and transparency. We are committed to operating in a transparent manner. We issue reports after each inquiry and mediation in addition to our annual report. We are authorized, as well, to issue a report regarding any matter related to specific claims.
We communicate through a variety of means including our website, newsletters, reports and participation at conferences. Perhaps more than most public organizations, we travel to the communities we deal with to ensure that distance is not a barrier to being heard.
[Translation]
The fourth and last principle: the importance of oral history. We meticulously collect the history relevant to the inquiry by going to the community in question and listening to the testimonies of band members, in particular the elders.
Let me say that we are very proud of this practice at the Indian Claims Commission. Collecting and admitting into evidence oral testimonies is a unique contribution of the commission, and was beneficial to both the First Nations and the Canadian general public. The Supreme Court of Canada has now recognized the importance of giving oral testimonies the same weight as any other form of evidence presented to a tribunal.
[English]
Perhaps more philosophically, we see our role as bridging different perspectives. The ICC plays a unique role in Canada as we work between parties with opposing viewpoints during inquiries and with parties having different perspectives during mediations.
Despite all of our best efforts, different perspectives will continue to characterize the specific claims process in Canada for some time. This concept of bridging will remain critical if we are to make collective progress in the specific claims area.
[Translation]
In conclusion, I would like to suggest, since the committee has heard proposals from a number of witnesses and that you asked for recommendations or suggestions to improve the process —
[English]
— in our perspective, three improvements would help: First, better application of the precedents and principles that have been generated through 30 years of settling claims.
Over 270 claims have been settled. I expect it would be possible to assess grouping of these claims under categories such as treaty rights, flood claims, claims regarding rights-of-way, overland, surrender claims or treaty land entitlements.
The second improvement that would help is increased use of mediation, not only for claims that have been accepted and are in the negotiation process, but also for claims at any stage of the process.
Finally, it would help to have additional resources in the system for First Nations to conduct research, prepare their claims and negotiate accepted claims; for officials in Indian and Northern Affairs Canada and Justice Canada to process claims that are submitted more quickly; and for the commission to carry out our mandate for inquiries and mediations.
[Translation]
In conclusion, we are of the opinion that the Indian Claims Commission has, for the most part, proved itself since 1991. Nevertheless, it is clear that there are still substantial challenges. Rest assured that we will spare no effort to ensure the process that we are applying gains the trust of all parties.
The Chairperson: Thank you very much, Ms. Dupuis, for your excellent presentation.
Senator Gill: Thank you for your presentation, Ms. Dupuis. To begin, I would like to highlight the good work you have done at the commission, the commissioners and staff. I have witnessed this hard work.
I think that everyone agrees, the key question is the process and the backlog it has created. I think that is why we must go through this exercise. Your testimony is important.
The commission's mandate is to mediate conflicting claims. Might arbitration be applied to cases such as Caledonia, for example, or Ipperwash? I do not believe that the commission has a mandate and I get the impression that no one has a mandate. The Minister of Indian Affairs has one, perhaps, we do not know. We do not know anything about the provincial government either. I get the impression that the problems continue and will never end. The conflicts may degenerate into serious and complicated situations. I doubt that the commission has this mandate, but it would be useful that it have one to intervene in these conflicts.
Ms. Dupuis: Thank you, Senator Gill, for your kind words about the commission's work. I think that, in fact, the work of the Indian Claims Commission, which has no equivalent institution in Canada, is extremely important and valuable. In its 15 years of existence, as we are celebrating our 15th year in existence this year, the commission has gained experience and expertise that are very useful in the settlement of specific claims.
To answer your question more directly, I would invite you to look closely at our commission's mandate. The bylaw establishing the Indian Claims Commission provides for the possibility of the commission conducting mediation. What we have observed after 15 years of experience, is that the mediation mandate is not limited to a claim that has either been denied or upheld. In other words, when we say that we have a mediation mandate in all stages of the process, we currently have mediations at the commission that are pilot projects, but for claims that were identified but not yet submitted, in some cases. In other words, I would invite you to closely analyze everything possible pursuant to the current mandate of the commission, and you will notice that there are few limits insofar as, evidently, we are dealing with a specific claim, since the Indian Specific Claims Commission, as its full name indicates, is limited to the analysis and examination of specific claims. It is clear that the commission could be extremely busy with more mediation. That is why we have identified it.
Senator Gill: I get the impression that mediation is done when there is a claim in progress, in a situation about to explode. Do you think that you have a mandate? If you think that you do not have a mandate, it would be good for an organization to have the mandate to intervene in such situations. Everyone asks questions in similar situations. Everyone is passing off their responsibilities, no one is taking it as a reality and that continues. When there is no claim or process commenced, do you think that you have the mandate to intervene?
Ms. Dupuis: Pursuant to the terms of our mandate, any issue related to a specific claim can, if both parties agree, be referred to the Indian Claims Commission, even if it is not a specific claim being analyzed, for example, by the Department of Justice Canada.
Therefore, within the framework of our current mandate, it is evident that the commission's mandate is limited to issues related to a specific claim, but that does not mean that the commission cannot intervene at the request of the First Nation and Canada.
The Chairperson: When you decide on negotiations, is your decision final?
Ms. Dupuis: To begin with, I think that I would like to make a distinction between the two parts of our mandate. In an inquiry, we hear the parties, go into the community and issue a recommendation. And the aim of the commission's recommendation is to evaluate whether the department should review its decision to deny a claim. It is, therefore, a power of recommendation. It is important to understand that. But this does not ultimately prevent a First Nation from going to the courts if it is not satisfied or does not get the department to review the decision. We can recommend that the government change its decision, to uphold it because we believe that there is a valid claim, or not to change it because, in our opinion, the claim is not valid.
[English]
Senator Hubley: The element of the model of the Indian Claims Commission that stands out for me more than anything else is that the process has the confidence of all parties. We are looking for a model to improve the settlement of claims. Is the model of the ICC something that we could recommend applying to other areas of claims?
Ms. Dupuis: Your question gives me the opportunity to state some of the value in the process of this commission. When I referred to the guiding principles, the very fact that this commission is independent from Indian and Northern Affairs Canada and from First Nations, and is and must be impartial in its assessment of this claim, is, in our view, one reason we have had some success in the past in the form of recommendations being accepted by Canada and leading to the settlement of claims.
Concerning fairness and natural justice, I was referring earlier to the fact that it is very striking when we go into a community and we have, face to face, the First Nation, their lawyers, Justice Canada and Indian and Northern Affairs Canada. There is a lot of mistrust, a lot of anger, a lot of frustration — and legitimate frustration. Sometimes, it is the first time being in the same room, at the same table, and with the help of an independent and neutral party trying to clarify facts, get at defining issues jointly, hearing arguments and opposing views.
It is, in some cases, a very strong shock of reality in the sense that the First Nation suddenly hears the very people that argue that they do not have rights. On the other side of the table are Canada's lawyers, hearing for the first time the elders of a community putting evidence before this commission in the form of testimony about the First Nations perspective on their own claim.
It is certainly very important; that is why we insist on this feature of the commission's process. We are encouraging parties, through inquiries and mediation, to try to do joint research, instead of having up-front research, counter research and delays and such. We insist we anchor it; but we invite the parties to do joint studies and research.
There is a lot in our process that should be maintained and expanded to get some results in solving these claims.
Senator Peterson: Would it be possible for you or your commission to provide this committee with a table indicating all the claims that you have received as to type, status and timelines?
Ms. Dupuis: We certainly can provide you with data on claims that we have inquired into and mediations that we have been involved with and timelines.
Senator Peterson: Identified from whom it was received, as well?
Ms. Dupuis: Yes.
The Chairman: Thank you for your presentation, Ms. Dupuis, and for answering our questions.
I thank all senators. I feel we have had a good evening. We have had two very worthwhile witnesses in Minister Prentice and Ms. Dupuis. We will look forward to getting the information that Senator Peterson asked of you, Ms. Dupuis.
I believe I have spoken to you in Air Canada's aircraft travelling to Vancouver at one time. I am certainly impressed by your knowledge and your commitment to the work that you are doing. Hopefully, you will be able to help us help the minister, the government and the country deal with this very important issue that has led to tremendous frustration, as Senator Gill has pointed out, right across the country.
Thank you again.
The committee adjourned.