Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 2 - Evidence - Meeting of March 23, 2010
OTTAWA, Tuesday, March 23, 2010
The Standing Senate Committee on Aboriginal Peoples met this day at 9:32 a.m. to examine the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and other matters generally relating to the Aboriginal Peoples of Canada (topic: specific claims).
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators, members of the public, and all viewers across the country who are watching these proceedings of the Standing Senate Committee on Aboriginal Peoples on either CPAC or the World Wide Web.
I am Senator Gerry St. Germain from British Columbia, and I have the honour of chairing this committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal Peoples of Canada, generally. This gives the committee a broad scope to look into issues of all types which touch on matters of concern to First Nations, Metis and Inuit.
The purpose of today's meeting is to obtain a follow-up from Indian and Northern Affairs Canada on the issue of specific claims. Specific claims arise from alleged breaches in the administration of the lands and monies of First Nations under the Indian Act and/or in the fulfillment of treaties.
This committee's December 2006 report entitled Negotiation or Confrontation: It's Canada's Choice chronicled our concerns. In that report, we noted that most witnesses favoured the establishment of an independent body for resolving specific claims through a cooperative effort by First Nations and Canada, as well as through improved INAC and Department of Justice processes and enhanced resources dedicated to the resolution of claims.
The committee recommended, among other things, increased funds for claims settlements; the joint establishment of an independent claims body with authority to resolve claims; and the allocation of additional financial and human resources to INAC, the Department of Justice and claimant groups. The committee would be very interested to hear whether, or to what extent, its recommendations have been acted upon.
[Translation]
Before we hear from our witnesses, allow me to introduce the members of the committee who are here this morning.
[English]
On my right is Senator Nick Sibbeston. Next to Senator Sibbeston is Senator Rose-May Poirier. On my left is the Deputy Chair, Senator Lillian Dyck. Next to Senator Dyck is Senator Larry Campbell. Next to Senator Campbell is Senator Elizabeth Hubley.
Members of the committee, please help me to welcome our first witnesses. From Indian and Northern Affairs Canada, we have Michel Roy, Senior Assistant Deputy Minister, Treaties and Aboriginal Government. Also from INAC is Ms. Anik Dupont, Director General, Specific Claims.
Mr. Roy, you have a presentation. I would like you to keep it as precise as you always do because I am sure the senators will have several questions for you.
Michel Roy, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Indian and Northern Affairs Canada: Good morning, honourable senators. I would like to thank you for your invitation to appear before the committee this morning. As the chair mentioned, Ms. Dupont is with me today. She is the Director General of the Specific Claims branch within the sector of Treaties and Aboriginal Government.
I would like to take the opportunity to give you a brief update on the Specific Claims Tribunal Act, the tribunal registry, as well as the Justice at Last initiative.
On October 16, 2008, the Specific Claims Tribunal Act came into force, establishing the Specific Claims Tribunal. The Specific Claims Tribunal is supported by the tribunal registry, which is located here in Ottawa. The registry provides administrative services to the Specific Claims Tribunal, participants and the Canadian public in support of resolving claims fairly and without delay. Ms. Veda Weselake has recently been appointed as its Deputy Head and Registrar.
On November 27, 2009, the Minister of Justice announced the appointment of three federal judges to constitute the Specific Claims Tribunal, pursuant to the provisions of the Specific Claims Tribunal Act. Madam Justice Johanne Mainville of the Quebec Superior Court and Mr. Justice Patrick Smith of the Superior Court of Justice of Ontario will form part of the tribunal, along with Mr. Justice Harry Slade of the British Columbia Supreme Court, who has been named Tribunal Chair.
The first task at hand for the tribunal is the development of the rules and procedural guidelines to ensure that claims are adjudicated expeditiously and in a culturally sensitive manner. As part of this activity, tribunal members will be seeking input from a variety of stakeholders and interested parties.
[Translation]
The Justice at Last initiative on specific claims was announced in response to a report, produced by your committee in 2006, entitled Negotiation or Confrontation: It's Canada's Choice. This report was the cornerstone on which the reform of the specific claims process was developed. I would like to take this opportunity to thank the committee for producing that report and the recommendations it contained. The report marked a turning point in the development of the new initiative announced by the Prime Minister. We have already touched on the Specific Claims Tribunal Act and the subsequent creation of the tribunal and its registry.
We would like to focus now on the other aspects of this initiative. Effective April 1, 2008, the Specific Claims Settlement Fund was established. Valued at $250 million for a period of ten years, the fund is dedicated solely to the settlement of specific claims stemming from a negotiated settlement or an award from the tribunal.
Major improvements have been made to our internal procedures to ensure faster processing of specific claims. These measures will ensure that the backlog of claims is addressed and that new claims are dealt with promptly and effectively.
Improvements have been made to meet the three-year assessment time frame. Claims presented must meet minimum standards in order to be filed with the minister. These standards have been shared with all aboriginal partners across the country so that they can clearly understand what standards they must meet when they submit a claim. Once a claim is filed, no additional information can be added. Claims of a similar nature are bundled for the purpose of the historical and legal review. Additional resources have been dedicated to the initial assessment phase of the specific claims process.
Measures have also been implemented to ensure that the three-year negotiation time frame will be respected. Standardized negotiation protocols are being introduced. Independent mediation services are being made more accessible. Tools such as models and templates for compensation are being developed. Early financial mandates are being sought, particularly for smaller value claims, and more extensive use is being made of existing studies and/or data instead of always starting from scratch. These measures have contributed to a more streamlined approach and have produced tangible results. We have made significant progress in reducing our inventory. As you can see in the chart you have received, the one with red and blue columns, for the first time ever, there are more finalized claims than there are claims in the inventory.
In March 2008, the inventory was made up of 613 claims under assessment and 133 claims in negotiation for a total of 746 claims. A year later, on March 31, 2009, the inventory contained 527 claims under assessment and 143 in negotiation for a total of 670 claims. On December 31, 2009, the total was 447 claims in assessment and 161 claims in negotiation for a total of 608 claims. It is to be noted these numbers include not only the claims that were in the inventory but also new claims.
Since October 16, 2008, 70 new claims have been received. In accordance with our commitments, the early review of all these claims has been concluded within six months. Of these new claims, 52 have been filed with the minister.
[English]
While the research and assessment phase of our process is key, our goal is to bring closure to First Nations' grievances through the negotiation and settlement of specific claims. In this area, we have made good progress.
In fiscal year 2007-08, when Justice at Last was announced, 17 specific claims were settled for a total of close to $82 million. In 2008-09, 19 claims were settled for a total of $187 million. This fiscal year, we have so far settled 11 claims, totalling $19.5 million.
We continue to work on the development of selection criteria for independent mediators to provide mediation services to the negotiation table. While our work is far from complete, we will continue to work toward the reduction of our inventory through the various stages of our process.
[Translation]
Thank you very much, Mr. Chair. We will be pleased to answer your questions.
[English]
The Chair: I understand that there is a process, and the primary objective is to speed up the process. In certain instances, if the minister could give a directive to the First Nations that the department will not settle, is there any way to expedite some of these various claims through to the tribunal? How long will it take before cases appear before the tribunal?
Mr. Roy: As I said, the tribunal is presently developing rules governing the functions of the tribunal. They have not heard any cases. You will have to ask the tribunal members when they plan to hear cases. They are developing the tribunal rules.
At the same time, we now have the three-year rule to validate and settle the claims. You may remember when it took 13 years to 14 years to settle claims. It is now within three years. It is the same thing for the decision on validation.
Some First Nations have gone to the tribunal because of Canada's rejection of their claims. These cases are before the tribunal and the First Nations are waiting for the tribunal to proceed.
The Chair: Theoretically, the minister has three years to accept or reject a claim, and then there is another three years. You could be looking at a six-year process.
Mr. Roy: If we are successful in negotiations, yes, it could look at a maximum of six years.
Senator Sibbeston: I am very much interested in this subject that has been around since I arrived in the Senate. There have been many problems with the federal government not dealing with specific claims.
Some of the conflict that has arisen in our country over the last 20 years or so has been as the result of unsettled claims — for example in Oka. It seems that we have made a lot of progress in this area. Once in our lifetime or once in a generation, things happen; the stars line up and we make a lot of progress. I think this event has turned out well.
Mr. Prentice came upon the scene a number of years ago as a minister and because he had experience in this area, he realized and saw the problem. Minister Prentice worked with this committee and approved our recommendations. When you discuss the tribunal and independent judges, you speak in part, of Mr. Prentice's work over the last few years. I am optimistic.
When will the full tribunal be set up? I am aware that negotiations and settlements do not have to go before the tribunal; the tribunal exists if there is no agreement and the minister does not want to hear the specific claims. When do you expect that the full tribunal will be in place and functional? When will the tribunal be available to move the specific claims that are not settled in the normal manner?
Mr. Roy: This is a question that is probably better directed to the tribunal. We are keeping our distance from the tribunal because it is independent; we must be careful about any intervention vis-à-vis the tribunal.
We know the three judges and the chair are working on their rules. It is up to them to decide when they will be ready to hear cases.
In the meantime, we are proceeding with validation, negotiations and settlements. We are not waiting for the tribunal; we are proceeding.
As I said, we know that some cases were submitted to the tribunal. It is now up to the judges to decide when they are ready to proceed.
Senator Sibbeston: In terms of your responsibility, you talk about the improvements over the last few years. What has made the difference? Is it your management? Is it your initiative? Is there a renewed spirit of dealing with these specific claims?
Mr. Roy: I will ask Ms. Dupont to provide more details. Of course, we have more resources and more people to work on the backlog. We changed the way that we do business and the way we review and analyze the validity of the claims. We also changed our approach. Ms. Dupont can provide more details on those changes.
For example, instead of negotiating for years and years for a claim of small value, we will try to come to the table right away with an offer because we know what the claim is worth. We will come with an offer instead of negotiating. Then the First Nations can decide whether to proceed with their claim. We will get better results in that way. It is a different way of doing business.
Senator Sibbeston: I appreciate that it is not only your department; the Department of Justice has a role in analyzing and in giving a legal opinion.
Mr. Roy: Yes.
Senator Sibbeston: Has the Department of Justice put more effort and resources towards this matter?
Mr. Roy: Yes, Justice has put in more resources for validation and legal analysis. They have developed a different way of doing business. They are regrouping, and we are regrouping for them. We work together as a group, for example, in putting the same types of claims together. They will look at those claims as a group. The process is then easier and faster.
The Chair: One of our recommendations was that additional resources be dedicated to the assessment phase. The Department of Justice always said they did not have enough funding. Are they being adequately funded now? What is the difference as far as funding is concerned? The excuse was always that staff was changing at DOJ before things got through, and they never had enough human resources.
Mr. Roy: Indian Affairs and the Department of Justice received more resources to add people to their teams. Perhaps Ms. Dupont has something to add.
Anik Dupont, Director General, Specific Claims, Indian and Northern Affairs Canada: When we started looking at reforming the process, we met with the Department of Justice to develop a backlog plan of how we will get through all the files. We developed strategies to streamline our processes, because we have to work hand in hand with the Department of Justice. We met with DOJ and had a frank discussion about what Indian Affairs can do, when we present the documents to the Department of Justice, to enable them to do their work more efficiently and in a shorter time frame. We also needed information from the Department of Justice to be able to make an appropriate recommendation to the minister on whether to accept a claim.
We then looked at whether or not the current organizations can meet the obligations under the act with regard to the three years. We then assessed how much resourcing we would need, both from our side and from the Department of Justice. That is how we came to the resourcing that was approved for three years.
Senator Campbell: I am looking at your first chart. What exactly does "concluded'' mean?
Ms. Dupont: "Concluded'' can mean that the file has been addressed. It is either a file for which there has been a settlement or it may have been closed, for a variety of reasons. We have had First Nations who have asked to pull their claims back and resubmit at a later date because they wish to rework their file. It may also be because the First Nation no longer wishes for the claim to be evaluated by the department. The file closures are either at the First Nations' request or at the department's request, in a case where we have not received a response from the First Nation. The file may be considered addressed if it is being treated by another means, referred to an administrative remedy, or if it is outside the policy, we have closed it, and they are seeking readdress through another process or through litigation. Basically, those are the actions whereby, when we conclude a claim, it is considered to be addressed; the file is closed and the work has been completed.
Senator Campbell: Do the First Nations consider the file to be completed?
Ms. Dupont: In all cases, we advise the First Nations that the file is being closed. If they come to us and say that they wish the file closed or they wish to retract their claim, we always confirm the status of their file in writing.
Senator Campbell: I would like you to prepare for us a breakdown of "concluded.'' You figure out how you want to list the file — settlement, closed, other means, administrative — but I have a sense here that "concluded'' is not really concluded; that "concluded'' is that "we will not deal with it any longer'' or "we have decided that we will not deal with it any longer.''
I want to know exactly how that fits in. If I am not mistaken, the specific claims we looked at were worth about $6 billion. I believe that was the figure to pay out the whole thing. I do not see us coming even close to that number. I would like that broken down.
When was the tribunal formed?
Ms. Dupont: The registry was established with the coming into force of the act. The act created the tribunal. In November 2009, the three judges were appointed by the Department of Justice.
Senator Campbell: I guess we will have to ask them why it takes three judges four months to figure out who they are and what they are doing. Is it to them that we should ask that question?
Ms. Dupont: Yes.
Senator Campbell: It seems like an awfully long time.
What is the relationship between you and the tribunal? They are independent; I understand that. In what way do you relate to that tribunal?
Ms. Dupont: The tribunal is the body that will make decisions and evaluate claims that were made by the department. We are a party to the decisions that are made through the work that we do as a department. We have to remain independent.
One of the complaints of the former process was that we were judge, jury and executioner. The tribunal is now an independent body. We will be called before the tribunal, or the minister may agree to go to the tribunal to get a final decision on a specific claim. Until we are called upon by the tribunal, we go about our business. They have to maintain their independence in the work and decisions they make, and present any information or respond to any questions they may have when they want to render a decision on a specific claim.
The Chair: The tribunal is there. How do we expedite claims that the government is not prepared to accept and get them moving towards a tribunal? The tribunal, theoretically, could be present, but if they have no cases, we cannot really blame them for not processing anything. How do we get these cases moving toward the tribunal? That is the big question.
The system is designed such that it could still be six years. It would be a shame to have these people waiting for a long time before a case appears before them.
Mr. Roy: Essentially, the tribunal has the first "droit de regard'' in terms of validation. Therefore, if the minister rejects the claim, then the First Nations can go to the tribunal for a decision on validation. It is an appeal on our decision.
We have cases where we rendered a decision. We advised First Nations that their claim is being rejected for many reasons. Some of those cases are already in front of the tribunal. They have submitted their claim to the tribunal and they are waiting for the tribunal. There are already those cases.
In the context of the negotiations, after three years of negotiations, since we have tried to negotiate a deal, if we cannot reach an agreement then the First Nations have a choice to go to the tribunal and to get a decision from the tribunal. However, they will only receive monetary compensation from the tribunal. There are other ways of moving faster. The way that the act is designed, the department cannot decide to go to the tribunal, it is a First Nations decision.
Of course, we can have an agreement with the First Nations that it is quite evident that we will not reach an agreement. In that case, both parties can decide to go to the tribunal, or the First Nations can decide to go to the tribunal because we admit we are not aiming for a conclusion. Essentially, it will be that three-year period and it will be at the request of the First Nation, not the government.
If the tribunal is ready to proceed, they already have cases because of the decisions on validation that some First Nations have received from Canada.
Senator Campbell: That was the point I was making. There are First Nations that are ready to go to the tribunal and the tribunal has not even been able to set up its own guidelines. How long does this take? How tough is it to set up guidelines? They have had five month. We keep saying three years and then three years but in fact it is not three years and three years; it is three years, three years and whenever we happen to get before the tribunal then away we go. That is one of the difficulties. I think we have moved in the right direction but we do not seem to have been able to put this tribunal in place and that is the difficulty.
Senator Dyck: I will follow up on the idea of the "total concluded'' because you indicate that over the years you have settled approximately 47 claims. It is important that you break down that item because it is misleading. "Settled'' to my bias means settled in the positive. I would like to know how many cases have been pulled, withdrawn or rejected. You indicate that some cases may be directed to the tribunal. Can we find out how many of those you suspect will go to the tribunal? Do you have any indication from those First Nations that they will be trying to go through the tribunal process?
Mr. Roy: We can provide those details. In terms of validation, when Canada is taking the decision not to accept a claim it is based on legal principle. Those principles are explained to the First Nations. When the First Nations receive a decision that Canada will not accept the claim, we provide an explanation to the First Nations. In the majority of cases, First Nations will agree with the decision. They may not be pleased, but we explain why we do not believe there is a valid claim. The majority of them will accept that decision.
The claimants who do not accept the decision can go to the tribunal and make their case there for validation, or if they have new facts, they can resubmit a new claim.
The decision is explained and First Nations usually understand why we are taking that decision to validate the claim. We consider that claim to be addressed because we went through our own internal review and we made a decision on that claim.
Senator Dyck: You indicate in your presentation that you are implementing measures for faster processing. This would be under the old system. As I recall from previous submissions by the department, the backlog is in the initial phase of the assessment. My concern is that it sounds like in your new measures for faster processing that you are requesting a minimum standard. Are you now rejecting that many more at that initial stage so that the backlog is being reduced by rejection rather than by necessarily settling them in a more positive fashion for the First Nation? Are you actually rejecting more at the beginning and saying they cannot come back because once filed no new additional information can be submitted?
Ms. Dupont: Before the act came into force, we went through the entire inventory of claims in the assessment phase. We then contacted every First Nation in writing and offered them a six-month refreshed period on their files. Therefore, the First Nations were allowed to look at the file and make sure wanted to present these files to the department for consideration. They could add the information at the time. They were given a six-month period to look at it.
I believe there were fewer than 50 First Nations that actually retracted their claim, provided us new information and resubmitted. They were all evaluated against the minimum standards. We saw that the claims were being filed in a more complete way so we still reviewed them.
The six-month refresh period allowed them to do that. Where the non-acceptance of the claims comes is when they do not have a lawful obligation; then we do not accept a claim for negotiation.
Senator Dyck: Can you give us a breakdown of some of the old claims versus the new ones? How many claims filed prior to October of 2008 have been decided upon? How many negotiations of claims accepted prior to that date have been completed?
Senator Hubley: You indicated that the tribunal is working on its rules of practice and procedure. What progress has been made in consultation with the First Nations to ensure First Nations protocols, language and cultural values are being incorporated?
Mr. Roy: Unfortunately we do not have that information. You should ask the tribunal those questions. As I said, we are keeping our distance from the tribunal. It is an appeal mechanism to our decision so we are keeping our distance from the tribunal. That is a question you may want to ask the tribunal.
Senator Hubley: Are you telling me that these issues are not important in the work that you are doing?
Mr. Roy: It is very important. We work closely with the First Nations and the cultural values are very important to the department. We worked jointly with the AFN to develop the initiatives. The AFN had the chance to intervene and to influence the development of the initiatives. We know — and you may want to ask the tribunal — that they had some discussion with AFN as well. They have a registrar in place and a deputy head, so they discuss those elements with the AFN.
Senator Hubley: According to the National Summary Status Report as of March 18, 2010, there were 1,456 specific claims filed since 1970. There were 590 claims in progress, of which 172 are at the legal opinion stage, 131 were in active negotiations, 331 had been settled and 76 were in active litigation. We seem to be going through many stages. Please explain the legal opinion stage.
Ms. Dupont: I will frame the steps for you. When the claim is submitted, our research teams review it against the minimum standards. In the old process, when a claim was submitted, there was a lot of data and information; boxes and CDs filled with information. Our staff and researchers would ensure that all of the appropriate information was included in the claim and send it on to the Department of Justice. Part of our streamlining exercise is that the researchers go through all the information and write up a summary for the Department of Justice, attaching all key documents that the Department of Justice may want to look at in considering the claims. That goes to the Department of Justice for review. The Department of Justice looks at the summary documents and all the appended documents, and evaluates the claims submission against legal principles. They inform us through a legal opinion whether or not there is an outstanding, lawful obligation on behalf of the federal Crown.
We divide the assessment process into three one-year segments. We take one year to research of the material, one year for the Department of Justice to do their research and formulate their legal evaluation of the file, and one year for us to review the legal opinion within our policy and make the recommendation to the minister for a response to the First Nation.
Senator Hubley: You have one year to research and to get all of the documentation in place, and then one year at the Department of Justice, and then one year to settle.
Ms. Dupont: We have broken it down that way to map out the work. Sometimes it does not take that long, but we look at the three years as our time frame, and we have been responding within the three years. The three years is our maximum. We have to estimate how much time all these files will take to go through the system for our planning purposes.
When a claim comes back with a decision from the Department of Justice, we look at that decision and review it with the initial documents. We develop the documents that will be put forward to the minister for recommendation, process the claim through the department and then submit it to the minister for his ultimate approval.
The Chair: Do we share information with First Nations? Traditionally, your department kept its information to itself and as a result, caused duplication of research. Has this problem been rectified, and how?
Ms. Dupont: Previously, they would submit information, and then either we would do research or the First Nation would do supplementary research, and then we would meet again and compare our research, which caused the ballooning of the time to look at the claim. Now, because we have outlined the minimum standards, the First Nation knows exactly what information we look at. We do an early assessment of their claim to ensure they meet the minimum standards. If there is information missing, they will go out and, if they need to, do their own research. When we review the file, if we find information that might be pertinent to the First Nation, we send it to them. We copy them on the information and say, "We found this; this is the information.'' If the First Nation chooses to add it because the information might help their claim, they retrieve their claim from the department, add the information and then resubmit it to us with the additional information. There is no longer a back and forth and a comparing and doing extra research.
Mr. Roy: First Nations can go to the website, look at their claim and get access to all of the information we have on the program. It is a public site. We have the statistics there, and people can even find out about their specific claim through the website. The information is available on the web.
Senator Poirier: Has the three years within the department for your evaluation always been in place, or has that specifically been implemented since the tribunal come into existence?
Mr. Roy: It was established with the new initiative. Before that, we did not have a time limit. We had some files that took six, seven or eight years to evaluate. Right now, we have a maximum of three years. As Ms. Dupont said, we are trying, when possible, to shorten the procedure. We do not necessarily take the three years.
Senator Poirier: When this three-year rule came into effect, how many outstanding claims automatically became a priority to deal with in that three-year frame before you looked at any new claims? How many outstanding claims were there?
Ms. Dupont: There were over 700 claims in the inventory. Of those claims, the clock started on October 16, 2008, with the coming into force of the act.
Senator Poirier: Of those 700 claims, how many are pending? How many claims are waiting to go to the tribunal?
Ms. Dupont: We are still within the three-year time limit. The act states that the minister must render a decision within three years, so October 16, 2011, is the deadline when the First Nation can go to the tribunal. However, given the current progress, we will have treated all those claims before the three-year process has been completed. It was all part of the backlog plan. Our work continues to be the negotiation of the settlement of the claims that we have, not to move the backlog of the inventory over to the tribunal. By 2011, by the act, we will have treated the claims that have been in the inventory for the three years.
Senator Poirier: Are you telling me that not one of the 700 claims has been completed in less than three years?
Ms. Dupont: No, we have rendered many decisions on those claims.
Senator Poirier: That is what I was asking. On how many of those claims has a decision been rendered?
Ms. Dupont: I will have to get back to you with the numbers.
Senator Poirier: How many new claims have come in since the act has been put in place?
Mr. Roy: There have been 70 new claims.
Senator Poirier: When a claim is completed, the decision will either be in favour of or against the First Nation. At that point, the First Nation is advised of the results of the claim. You said many of them at that point decide to accept the government's decision, even if they disagree. Am I right?
Mr. Roy: Yes.
Senator Poirier: In that letter that goes back to them, is there an explanation of what they can do if they are not okay with it, advising that they can go to the tribunal.
Mr. Roy: Yes.
Senator Poirier: If the First Nation is not happy with the decision, do they have 30 days, 60 days, one year to report or go to the tribunal to have it looked at it again.
Mr. Roy: There is no time frame. That decision belongs to them.
Senator Poirier: As we are speaking today, do you have any idea of how many possible appeals or requests are outstanding, awaiting the tribunal's regulations, rules and standards?
Mr. Roy: Based on our information there are five claims requests.
Senator Poirier: Five claimants have made that request?
Mr. Roy: Yes.
Senator Poirier: The tribunal's ruling on the act is final, from my understanding.
Mr. Roy: Yes, it is.
The Chair: The tribunal does not deal with claims over $150 million. How are these being handled now?
Mr. Roy: They are being handled through cabinet. The tribunal has no jurisdiction for the claims over $150 million. The only way to deal with such claims is through a mandate from cabinet, or the regular court system, if the First Nation decides to go that route.
The Chair: I wish to clarify something. Besides receiving a letter from the minister rejecting a claim, are there any other means a First Nation can refer the claim to the tribunal, or does it have to be rejected by the minister?
Mr. Roy: At the first stage, it must be rejected by the department before they can go to the tribunal for validation.
The Chair: There is a question as to whether this can be a delaying process as well. How quickly after a decision is a letter sent to the First Nation?
Here is what I am getting at: Mr. Roy and Ms. Dupont, the government designed this particular initiative to expedite the process. For some odd reason, some of us have the feeling — maybe incorrectly — that things are not going as expeditiously as they possibly could. Correct me if I am wrong. Maybe you could clarify.
Mr. Roy: As Ms. Dupont said, we had more than 700 claims in the backlog. We have a plan to address those claims within the three years because we have no choice; that is in the current legislation. We have three years. We are in line to address those 700 claims within the three years.
There is no delay, or any kind of theory of delay, here. Decisions are being rendered. It is not for anyone to delay the process because we have to go to court, in front of the tribunal in some cases: First Nations may decide to appeal the decision from the minister or go to the court for a decision on the negotiations if they feel there is no way that we can get a settlement.
That system is in place. We are in line right now to deal with over 700 claims which were in the backlog.
There is no strategy here. It is just a matter of getting the machine moving forward. It is working well right now.
Senator Poirier: Is all of the information that has been looked at in the three years, which has been brought to the department by the First Nations, as well as all the research the department has made, given to the tribunal so they have it to start off, or do they start from scratch?
Mr. Roy: I think the information is transferred.
Ms. Dupont: If the claim filed with the minister, the claim is transferred to the tribunal.
[Translation]
Senator Brazeau: The statistics for the last two years show some progress: more claims have been completed and there are fewer in the inventory. That is not a problem.
During your presentation, you talked about progress in terms of the ways in which the processing of claims is being improved, such as the finalization of regulations and better access to mediation services.
Given that this is a joint initiative between Canada and the Assembly of First Nations, and between the Assembly of First Nations and the communities, do they share your opinion about the progress where regulations have been finalized, or do they say that there are more improvements to be made in the processing of these claims?
Mr. Roy: The communities with whom we have agreements, with whom we have concluded negotiations, will tell you that it is very positive. They have an agreement with Canada. As for the communities with whom we are still in negotiation, I must admit that some find that we are moving a little too quickly and that we are a little too aggressive in our approach to the negotiations. We have to deliver the goods in three years and we are pushing the communities. So not everyone is completely satisfied in that aspect.
Our aboriginal partners found the process of appointing judges to be a long one. The process was under the jurisdiction of the Minister of Justice and it took a long time. The judges are now in place.
We are in regular talks with the Assembly of First Nations with regard to the evolution and we are currently working with them on mediation. The Assembly of First Nations sees things somewhat differently. They would have preferred to see mediation done through a structure independent of the tribunal. Canada decided to have a list of private sector mediators, accepted by all parties, who can be consulted when mediation is needed, rather than a structure that would come with its own costs and administration.
Senator Brazeau: As I said earlier, given that this is a joint initiative and a joint process between the Assembly of First Nations and Canada, I would be concerned to hear the department tell us that there is progress like never before and to hear the Assembly of First Nations tell us the opposite. That is why I asked you the question. I wanted to make sure that we are on the same wavelength.
[English]
The Chair: Mr. Roy, I have been handed a fact sheet that states that 50 per cent the specific claims are in British Columbia. This is a bit of a homeward question, seeing as I am from British Columbia. The fact sheet was released on March 18, 2010. It shows that these claims were settled before the legislation was enacted. There is only one after that point.
Is this an accurate list? Maybe I can show you the list later and you can get back to me on this.
Mr. Roy: We have settled more than one claim in British Columbia since the initiative has been launched. That is the place we have more settlements than any place else because of the number of settlements. In British Columbia, they are usually smaller claims in terms of value, but not significance. They move quite quickly in the system. We have a lot more than one claim in British Columbia.
The Chair: I will show you this before you leave and possibly the department can get back to us.
Mr. Roy: Ms. Dupont said 28 claims have been settled since 2007.
The Chair: There have been 28 settlements since what date?
Ms. Dupont: In 2007-08, we settled 28 claims in British Columbia alone.
The Chair: After September 4, 2008, it shows just one on this document. I will not belabour the point; we will seek clarification.
If there are no further questions, I would like to thank Mr. Roy and Ms. Dupont for coming here this morning and enlightening us on the evolution of the process in regards to specific claims. You have been asked some questions for which you have undertaken to get back to us. I am sure you will follow up with written answers.
Is there any other business? If there is no other business, we are adjourned until tomorrow at 6:45 p.m. Thank you.
(The committee adjourned.)