Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 15 - Evidence - November 23, 2010

OTTAWA, Tuesday, November 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.


The Chair: Colleagues, I see we have quorum. Good morning, I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples. They will either be watching on CPAC or the web.

I am Gerry St. Germain from British Columbia. I have the honour and the privilege of chairing this committee. The mandate of the committee is to examine legislation in matters relating to the Aboriginal peoples of Canada generally.

In May 2006, the Senate authorized this committee to undertake a broad study of specific claims policy and processes. Specific claims arise from alleged breaches in the administration of lands and monies for First Nations status Indian bands under the Indian Act and/or in the fulfilment of treaties.

From June through November 2006, First Nations and other witnesses from all regions highlighted significant deficiencies of the existing system. The Senate committee's December 2006 final report entitled Negotiation or Confrontation: It's Canada's Choice chronicled their concerns, noting 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 improved INAC and Department of Justice processes and enhanced resources dedicated to the resolution of specific claims. For clarification, INAC is Indian and Northern Affairs Canada.

On June 12, 2007, the Prime Minister announced a plan to reform the specific claims system. Reflecting the Senate committee's recommendations, its key components called for the creation of a tribunal staffed with impartial judges who would make final decisions on claims when negotiations fail; dedicated funding for settlements of $250 million a year for 10 years; improvements in the processing of claims; and enhancement of the existing Indian Specific Claims Commission's dispute resolution function.

Accordingly, on November 27, 2007, Bill C-30, the Specific Claims Tribunal Act, was introduced. The bill received Royal Assent on June 18, 2008 and came into force on October 16, 2008. We are here this morning to follow up on progress made in the area of specific claims since the passing of the legislation.

Colleagues, we will hear from two witnesses, both from Indian and Northern Affairs Canada. Patrick Borbey is Senior Assistant Deputy Minister, Treaties and Aboriginal Government. Anik Dupont is Director General, Specific Claims.


Before hearing from our witnesses, allow me to introduce the members of the committee here present.


Senator Roméo Dallaire is from the Province of Quebec. Also present is Senator Larry Campbell from British Columbia; Senator Nancy Greene Raine, also from British Columbia; Senator Dennis Patterson from Nunavut; Senator Carolyn Stewart Olsen from New Brunswick; Senator Rose-May Poirier from New Brunswick; Senator Patrick Brazeau from Quebec; and Senator Jacques Demers from Quebec.

Members of the committee, please help me in welcoming our witnesses, Mr. Borbey and Ms. Dupont. I believe you have a presentation, Mr. Borbey. We will hear it and hopefully you are prepared to respond to questions from the senators.

Patrick Borbey, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Indian and Northern Affairs Canada: Yes, I am.

I would like to thank you for your invitation to appear before the committee today. I am accompanied this morning by Anik Dupont, Director General of the Specific Claims Branch in the Treaties and Aboriginal Government sector.


Indian and Northern Affairs Canada last appeared before this committee to discuss specific claims earlier this year in March, when my predecessor, Michel Roy, was still in his position.

I would like to take the opportunity this morning to update you on the progress that has been made in respect to implementing the Justice at Last initiative since then and what will be accomplished in the coming months.


I would like to begin by describing the work we have engaged in with respect to the Specific Claims Tribunal. As you will recall, the first appointments to the tribunal were announced in November 2009. The three current members — Mr. Justice Harry Slade, who is the chairperson, Mr. Justice Patrick Smith and Madam Justice Johanne Mainville — have focused their efforts on assessing the possible nature and scope of proceedings in order to determine demands on tribunal members and on developing the rules of practice and procedure that will govern the operations of the tribunal.


In April, Ms. Dumont and the members of her staff met with tribunal members to provide information in respect to the nature of specific claims and the occurrence of claims across the country. Additional written information was provided in June to assist the tribunal in work planning.


In May, the chairperson posted a first draft of the rules of practice and procedure on the website of the registry of the Specific Claims Tribunal and invited comment.

Canada provided detailed comments and subsequently, on October 5, 2010, we attended a full-day meeting of the rules advisory committee convened by the chairperson, at which the draft rules of practice and procedure were discussed.

Canada, as represented by the Department of Justice, was one of 11 stakeholders that attended the rules advisory committee meeting. Other participants included the Assembly of First Nations, the Canadian Bar Association, the Indigenous Bar Association, the Federation of Saskatchewan Indian Nations, the Anishinabek Nation, le Conseil Tribal Mamuitun, the Union of British Columbia Indian Chiefs and the Nlaka'pamux Nation Tribal Council, as well as several law firms that represent First Nations in specific claims.

Since October, Canada has provided comments on a second draft of the rules. It is understood that once the rules are approved and in place, the tribunal will begin operations.


The chairperson of the tribunal submitted the first annual report of the Specific Claims Tribunal to the Minister of Indian Affairs and Northern Development on September 30, 2010. It is expected that the annual report will be tabled in both Houses of Parliament shortly.


Finally, in respect of the tribunal, the initial appointments will conclude at the end of November. It is understood that all three members have indicated a willingness to be reappointed. The appointment process falls within the mandate of the Minister of Justice and Attorney General of Canada.


I would now like to speak about the progress that has been made in respect to addressing the inventory of specific claims. I will discuss how claims are being addressed in both the assessment and negotiation phases of the specific claims process. Also, I have provided you with a number of charts that graphically depict the progress we have made in respect to processing and resolving specific claims.


The inventory of claims currently includes 380 claims in the assessment phase of the process and 177 claims in negotiation, for a total of 557 claims. The inventory includes claims that were filed with the minister as of the coming into force of the act — that is, the backlog claims, as well as claims that have been received since October 16, 2008.

Since April, 33 new claims have been submitted. I am pleased to inform you that we continue to meet public commitments that the early review of all new claims will be concluded within six months of their receipt. Of the 33 new claims received, 21 have been filed with the minister. Six claims have not been filed with the minister and those claims have been returned to the First Nation claimants with a detailed explanation as to why the submission did not meet the minimum standard established by the minister in accordance with the Specific Claims Tribunal Act.


Between April 1 and September 3, 2010, the historical and legal review of 59 claims was completed. Based on these assessments, the minister has accepted 29 claims for negotiation and advised First Nations that 30 claims will not be accepted for negotiation.


Solid progress is being made with respect to achieving negotiated settlements. Since April, six settlement agreements have been signed for a total compensation value of over $273 million. Three recently settled claims, the Peguis First Nation 1907 Surrender Specific Claim at $126 million and the Mississaugas of the New Credit First Nation's Brant Tract and Toronto Purchase specific claims, which were settled for a total value of $145 million, mark the three largest specific claims ever settled.

Last Friday, November 19, the minister was in Fort William to announce the settlement of the Fort William First Nation Boundary Claim and the Neebing Surrender Specific Claim. The settlement agreement provides for over $171 million in settlement of these claims.

Better access to mediation services will assist in achieving negotiated settlements. In order to provide better access to mediation services, a dedicated mediation unit has been created in our sector. The unit is currently working on developing selection criteria for independent mediators that will provide services on consent of the parties during the negotiation of claims. The selection criteria will be used to create a roster of mediators from which tables can quickly and easily engage services. The Assembly of First Nations has been invited to participate in the process of the development of selection criteria and the establishment of the roster.


In closing, I can briefly tell you about what the year ahead holds. As you are aware, the Specific Claims Tribunal Act sets out three-year time frames for the assessment and negotiation, respectively, of specific claims. Plans have been developed to meet these deadlines.


There is every expectation that, by October 16, 2011, the minister will have advised all First Nations of a decision whether to accept the 319 remaining backlog claims for negotiation. There are 96 claims that will have been in negotiation for three years as of October 16, 2011. Plans are also in place to ensure that tables nearing completion are appropriately mandated to conclude settlement agreements.

The ``Justice At Last'' initiative launched a fundamental reform of the specific claims process. Based on available data and ongoing observation, many of the objectives of the reform, particularly with respect to more efficient processing of claims, will be achieved. In addition, in order to confirm the success of the initiative, a formal evaluation has been initiated. The formative evaluation is currently underway and will be followed next fiscal year by a summative evaluation.

While significant progress has been made since we were last before this committee, a good deal of work remains to be done. The coming year will be very busy. We will continue to strive to address the backlog of claims and maintain an efficient, effective and fair process to respond to and resolve all claims.


Thank you and it will be a pleasure for Ms. Dupont and me to answer your questions.


Senator Campbell: Thank you for coming today.

The questions I have mainly deal with what has taken place since 2008. The timeline established by this act really indicates that nothing happens until 2011 — is that correct? There is a three-year window before anything actually takes place or anyone is able to come and make a claim within this act. Is that correct?

Mr. Borbey: No, claims are being assessed and negotiated now. However, we had a period of three years to be able to achieve the timelines that were in the act. The tribunal will begin operations hopefully before that timeline is achieved.

Senator Campbell: Will it be 2011 before we actually see any claims coming through this process?

Mr. Borbey: No, all the claims are still coming through the process. The tribunal to adjudicate claims that have not been successfully negotiated or that have not been accepted for negotiations — if First Nations want to bring those claims before the tribunal — has not been set up yet.

Senator Campbell: How many are prepared to go before the tribunal right now?

Mr. Borbey: We do not have that information because it is up to First Nations to decide whether they want to go.

Senator Campbell: Has anyone come forward?

Mr. Borbey: Not that we know of.

Senator Campbell: Have there been no new claims filed?

Mr. Borbey: There have been no claims filed for adjudication by the tribunal. The claims are being processed now and negotiated through the regular process.

Senator Campbell: That is what I am getting at. Even if I wanted to put forward a claim, there is no tribunal to hear it.

Mr. Borbey: The tribunal is a last-instance option for First Nations. There is still a negotiation process.

Senator Campbell: I have a claim, the minister says it will not go forward and I want to go to the tribunal. It has been three years. What happens — can I go to the tribunal now?

Mr. Borbey: No, the tribunal is not operational. It is an independent body that is currently establishing itself. Those questions will have to be directed at the tribunal in terms of when they will be able to hear some of those claims.

Senator Campbell: I feel that I am going in a circle here. Let me go back to this again. In practice, does not the timeline established by the act mean that no claimants may approach the tribunal until October 2011 at the earliest?

Anik Dupont, Director General, Specific Claims, Indian and Northern Affairs Canada: A First Nation has four different opportunities to approach the tribunal. The first one would be if the department, the minister, has made a decision not to accept; if their claim has not been accepted, they can go to the tribunal.

We do not exercise the full three years of assessment on all the claims. Even if we have already responded to some of them that they have a non-acceptance, in theory they could take that and go to the tribunal now. They do not have to wait the three years in order to file their claim.

Senator Campbell: In how many instances have they been told that their claim is not being accepted?

Ms. Dupont: There are about 100 claims now that have not been accepted.

Senator Campbell: If I am one of those and want it to go before the tribunal, how do I go before a tribunal that is not even set up?

Mr. Borbey: Again, the tribunal is an independent body. It is currently setting its rules and procedures. Once those are in place, it will be able to open its doors and start hearing cases.

Senator Campbell: Bill 30, November 27, 2007, set up the Specific Claims Tribunal Act. It is now 2010. What has gone on for the last three years?

Mr. Borbey: We have done our work, which is to process claims as quickly as possible, meeting those timelines, which means the assessment and the research, as well as the negotiation of claims. As I said in my opening remarks, we have negotiated a number of claims successfully; we have settled a number of claims; and we have reduced the backlog significantly. When this committee was looking at the issue, the backlog was over 800 claims and we have reduced that by at least half.

Senator Campbell: You have settled 400 claims?

Mr. Borbey: We settled them or sent them back to First Nations as not meeting the minimum standard under the act.

Senator Campbell: How many did you send back?

The reason we do not have a tribunal even though the act was passed in November 2007 is because of the tribunal — nothing to do with your department, right? The tribunal has been going through the process of setting up since November of 2007, is that correct?

Mr. Borbey: Yes; they just recently tabled their DPR, departmental performance report, in Parliament in terms of progress on their implementation. They have an annual report that will be tabled in Parliament shortly, where they also will be reporting on progress.

Senator Campbell: I will wait for the numbers, Mr. Chair.

Senator Patterson: I was not on the committee when its report was done, so I am asking some, perhaps, basic questions. The first one is about the First Nations' research and legal costs.

My understanding is that, when the bill was before Parliament, there was a plan that the tribunal would have monies to allocate to claimants, First Nations whose claims were before the tribunal, for them to do research and cover their legal costs. Can you tell me if money has been allocated, how much, and how First Nations whose claims are before the tribunal can access that money for legal costs and research?

Mr. Borbey: First, First Nations have access to funding as part of the process when we are negotiating a claim. There is a process that we manage for that to help them support their negotiating costs. However, when it comes to the tribunal, it is responsible for providing that support and they have funding within their base to be able to do that.

Senator Patterson: Could you give us the details on that, now or later?

Mr. Borbey: Again, the tribunal is an independent body and they are responsible for their budgets. I do not have that information. Their DPR does provide a certain breakdown of their budgets and what they have done over the last year.

Senator Patterson: What is the DPR?

Mr. Borbey: The departmental performance report, which is tabled every year in Parliament. Sorry, it is the companion piece to the reports on plans and priorities. As an independent body, the registrar for the tribunal does table both documents.

Senator Patterson: And that has yet to happen?

Mr. Borbey: Both documents are tabled by the minister as part of the regular estimates process. The DPR was tabled, I believe, by the President of the Treasury Board a few weeks ago.

Senator Patterson: Thank you very much.

You have described the consultation process with respect to rules, which is great. I think you indicated that the department had input into the rules, if I understood comments from Canada. I am just wondering, was the government input on the rules with Indian Affairs? Did you have input into the rules that the tribunal is establishing?

Mr. Borbey: We worked with the Department of Justice, which represents Canada with respect to taking a position or commenting on the rules. We were involved in those consultations and have provided our comments. As a participant in the tribunal process eventually, when it is up and running, we certainly have an interest in those rules and procedures.

Senator Patterson: Are those positions that the department, through the Department of Justice, took available to us — your comments on the rules?

Mr. Borbey: I do not believe that those are public documents.

Senator Patterson: Where are we at as far as the finalization of the rules? That is needed to get the tribunal under way. How close are we?

Mr. Borbey: As I mentioned in my remarks, we recently provided a second round of comments to the tribunal. It is up to them now to take all of the comments they received from all the interested parties. They do have to go through an approval process. These have to be gazetted properly, so that process will have to be undertaken by the tribunal once they have completed their consultations. We are hoping they will be completing them fairly soon.

Senator Patterson: Who pays the judges' salaries?

Mr. Borbey: The Department of Justice is responsible for those salaries.

Senator Patterson: Has that been settled and worked out?

Mr. Borbey: I cannot answer that for the Department of Justice.

Senator Patterson: One would presume the justices are —

Mr. Borbey: I would assume. It also depends on how many judges; there is also that process in terms of how many will be required to manage the backlog and deal with the workload.

Senator Stewart Olsen: I have looked over your charts and want to commend you for the headway you have made. That is pretty impressive. You have gone from 2008 and there is the line-up of settling; I think that negotiated settlements are the way to go.

Because of this example of successes, are you finding that First Nations trust the process and are choosing negotiation rather than litigation? What are your findings of the general perception from the native bands?

Mr. Borbey: It is a little bit difficult for me to comment. I am relatively new on the job, but I have seen some pretty impressive settlements recently. I would say the First Nations that have settled are quite satisfied with the negotiating process. However, I cannot really reflect on what others may view or think of the process.

Ms. Dupont: I think it has been very positive. The First Nations are seeing the progress being made. We are getting positive feedback from the First Nations regarding the results.

They have been very satisfied.

Senator Stewart Olsen: Thank you for that.

I know there is still a lot of work to be done but I want to commend you for the work that has been done. I know it is a difficult process. It looks very good; we are well on our way to solving this issue that has been around for eons. Thank you.

Senator Brazeau: I have one question and it is to clarify something.

Once a claim has been submitted to Indian and Northern Affairs Canada and has been rejected and then goes to the tribunal, is it true that no new evidence can be submitted, or that jurisprudence cannot be cited? Basically, the claim cannot be amended at all.

Mr. Borbey: Until such a time as it leaves our department, yes, that is true. If a First Nation wants to add new information, it has to restart the process.

In terms of the tribunal's rules and procedures, they will determine how they will deal with any new evidence. We cannot really comment on that.

Senator Brazeau: If they have to start over again, then what is the time frame with that and what is the cost to the First Nation to basically start over again?

Mr. Borbey: From our perspective, the clock restarts when a new submission is made by a First Nation.

Ms. Dupont: If the First Nation chooses to refile a claim based on new information, we would not start back from the beginning. We review the file and how that file has changed since we looked at it the first time. However, it becomes a new claim and is treated like a new claim, so it starts again within the three-year time frame.

Senator Brazeau: What would the cost be to the First Nation to resubmit another claim?

Ms. Dupont: It varies from First Nation to First Nation and from claim to claim, depending on the type of claim. However, there are loans provided to the First Nation. Once we get into a negotiated settlement, their loans are paid on top of their settlement. Therefore, they incur loans up to the point of settlement and when the claim is settled, their loans are paid.

Senator Raine: Thank you for being here.

I would like you to clarify the situation right now with regard to the justices who have agreed to serve on the tribunal. A certain amount of time has gone by and I understand they are appointed for a specific term. If this term is up, have they actually agreed to continue on?

What is the process for appointing these justices? We understand there is a working committee set up. Is there a working committee to deal with appointments of justices, who is on the committee, and how does it all work?

Mr. Borbey: That process is managed by the Department of Justice and is under the responsibility of the Minister of Justice. Therefore, we are not directly involved in the appointment or selection of the judges. I am aware that we have three judges now and their terms are coming due. The Minister of Justice is now considering renewal of those terms.

Once the tribunal is nearly up and running, we will consider the appointment of additional judges to fill a roster for the tribunal.

Senator Raine: Do you not see any possibilities of delays in getting up and running in 2011? There should be no hold-ups, should there?

Mr. Borbey: We are hoping there will not be, and we are doing what we can to ensure that.

Again, the tribunal is an independent body and we cannot really answer for them in terms of what they are doing to get ready to hear cases.

Senator Raine: Can I switch to a slightly different topic?

I am looking at the list you have provided us that contains the number of specific claims that have been assessed, researched and concluded. I see ``settled through negotiations,'' 337; ``no lawful obligation found,'' 235; and ``file closed,'' 243.

Those last two numbers total 478, and are claims that would be in a position to go to the tribunal and ask for their cases to be heard. Am I correct in this?

Ms. Dupont: No. This is cumulative since the process began. The act stipulates that, if the claim was not accepted prior to the coming into force of the act, they do not have access to the tribunal. Therefore, only the claims that have not been accepted since the act came into force have access — about 100 of them — since October 16.

Senator Raine: You are saying there are situations where First Nations have submitted a specific claim and they have been turned down either because of ``no lawful obligation found'' or ``file closed.'' I do not know what ``file closed'' means.

Ms. Dupont: File closure happens sometimes when the First Nation does not want to pursue the claim for some reason or another. It might be that they are going to litigation, so we close the file in specific claims. It might be that the file is referred to another process if it falls outside the parameters of the specific claims policy. That is when a file is closed.

Senator Raine: We should then really look at the ``no lawful obligation'' found, which is when the government's position is that they are rejecting the claim, basically.

Ms. Dupont: There was no lawful obligation.

Senator Raine: Most First Nations might disagree. You are saying that because they applied before the tribunal process was set up, they have no access to the tribunal. Can they start over?

Ms. Dupont: Yes.

Senator Raine: Must they?

Ms. Dupont: Yes, they can start over.

Senator Raine: My logic says there are 235 cases out there that might come back.

Mr. Borbey: When we reject a claim, we provide a detailed explanation, including jurisprudence, as to why there was no lawful obligation. In many cases, the decision is accepted at the end of the day. Regardless, yes, they have the option of coming to the tribunal or restarting the process.

If they restart the process, we have already done the research, so it would not take as long to come to another decision with respect to accepting or rejecting the claim.

Senator Dallaire: You are working with this $2.5-billion fund over 10 years, which is new money to the department. Is it correct that this is added to your baseline?

Ms. Dupont: Yes.

Mr. Borbey: However, it is in a separate envelope and dedicated solely to specific claims.

Senator Dallaire: It did not come out of your budget, then.

Mr. Borbey: No.

Senator Dallaire: Once you settle a claim, what is INAC's responsibility with that First Nation organization in the follow-up to the claim?

Mr. Borbey: The settlement of the claim includes full releases for any future responsibility; the claim is settled and we insist on those releases.

The First Nation has to establish a trust with the proper controls to deal with the management of the monies. Normally, the ratification of the settlement also includes the approval by First Nation members of the setting up of that trust.

Once that trust is set up, the monies are paid into by the department. After that, the First Nation manages its monies completely independently. We do not have a role to play in any way whatsoever.

Senator Dallaire: Because some claims in the past have included building infrastructure and things like this, the needs for continued education, for social programs, for water, housing and so on, do those responsibilities now disappear from INAC and fall under the claims settlement?

Mr. Borbey: No, the First Nation continues to be eligible for all our support programs on reserve. If they want to supplement some of those funds with some of their own funds, they can certainly do that. That is their choice, but they are still eligible for all our programs.

Senator Dallaire: The previous settlements required that the settlement be reviewed every five years. Is that still part of the process?

Mr. Borbey: I think that is the comprehensive claims process, so it is a different process. The specific claim relates to past error or past wrong that is being corrected, while comprehensive claim deals with the settlement of rights over a territory where there is not an existing treaty.

Senator Dallaire: This settlement is a one-time resolution on a financial basis and has no impact on any of the INAC responsibilities in any of their areas toward these First Nations that were there and continue, or should continue, to be there post this, correct?

Mr. Borbey: Yes, and there may be some impacts in the future. For example, if the First Nation gets authority, as part of the settlement, to add lands to their reserve, there is a process that the department would be involved in, in terms of managing that addition to the reserve. Again, the First Nation would be purchasing land on a willing buyer- willing seller basis. It also would have to be contingent to existing reserve lands in order to be eligible to add to the reserve.

In some cases, where the province may be a party to the settlement of the claim, the province can transfer Crown lands they control. Some of those lands could be added to the reserve, depending on the criteria. Then we would be working with the First Nation through that process, and those lands would be subject to all the terms and conditions of the Indian Act.

Senator Dallaire: Now that you have these settlements coming to fruition, with the significant amounts of money going into the band or whatever structure that is there, have you seen the budget allocation to INAC in regard to any of its responsibilities previous to that area being modified, particularly reduced?

Mr. Borbey: No, there is no relationship between the two.

Senator Dallaire: Whether there is no relationship does not mean staffing has not happened. I am asking: has there been in any way, to your knowledge, any reduction of services or funding going to any of these areas where these settlements have happened in regard to INAC's responsibilities that have not been modified by this?

Mr. Borbey: I am not aware of any and there should not be.

Senator Dallaire: There should not be. Good.

The Chair: For clarification, Mr. Borbey, the $250 million per year that is allocated for settlement of specific claims by the tribunal, these funds are strictly for tribunal adjudication, are they not? You were pointing out that there was a settlement for $171 million in Ontario and other settlements. Does that come out of the $2.5 billion?

Mr. Borbey: Yes, all the settlements — whether they are current settlements based on the negotiation of claims by the department or whether they will be adjudicated by the tribunal in the future — will be funded within that envelope.

The Chair: I thought this $250 million was a fund set up strictly for those claims that would go through the tribunal process, and that anything over $150 million per claim would have to go to cabinet for settlement.

Mr. Borbey: Yes, in terms of any claims that are over $150 million, there is a separate process. We have to go to cabinet for those. However, every settlement, whether it will be a negotiated settlement or an adjudicated settlement, will be funded out of the funds that have been set aside, the $2.5 billion over 10 years.

The Chair: Okay.

Senator Dallaire: It is the same fund, but they have to go to cabinet to spend that one because it is $250 million.

Mr. Borbey: In the case of Fort William, it is over $150 million but there are two claims. I mentioned the Neebing and Boundary claims, so there are two different claims and we announced settlement of both at the same time. That is why it is over the $150-million threshold.

The Chair: My understanding was that when we went through this process and established this tribunal, that $250 million per year up to $2.5 billion would be over and above other settlements that took place. I am surprised to a degree. In theory, at $250 million a year, you could settle two big claims and there are no funds left for the tribunal for any of the settlements that would come forward.

How does that work? Can you explain to us how the funding works? You have $171 million, then you have $126 million and $145 million, so in theory, we are out of money. If the tribunal was up and running, where would the funding come from?

Ms. Dupont: We manage the $2.5 billion as a fund, in conjunction with the Treasury Board and the Department of Finance. We have the capacity from year to year to roll over the money that we do not spend.

The Chair: I know that. That was one of the recommendations we made and I believe it was reflected in the legislation.

Ms. Dupont: Yes, and on top of that, we are also allowed to draw down from the $2.5 billion coming in for future years. This year, our department, through the supplementary estimates, will receive approval to draw down in excess of $200 million of the $2.5 billion to pay for the settlements. That is the flexibility we have so that when the tribunal is up and running, and they come in with amounts that we have to pay, we are able to manage the settlement fund in a way that we can do that. It will allow us the flexibility to move money around within that time frame.

The Chair: Do we have an estimated figure of what the claims that are out there would cost us — a ballpark figure?

Ms. Dupont: We have a contingent liability that is the value of all the claims. It is over $5 billion.

Senator Sibbeston: I would be interested to know whether there has been a real change in the attitude and the approach of the department. With the passing of the Specific Claims Tribunal Act, I think there were expectations that there would be a renewed ``hurry up'' type of approach taken by the department to deal with specific claims.

Has there been that change in the attitude and approach from the department in dealing with these issues? You say in your report that you have to complete 319 assessments and 96 negotiations in the next 11 months. Is that a marked improvement and objective from past years? Are you able to achieve this objective?

Mr. Borbey: My observations are fairly recent, having just arrived a few weeks ago. There is a very focused and business-like approach to the settlement of the specific claims.

The reports are pretty thorough and they are tabled publicly on a quarterly basis so that people can see the progress we are making. I think the charts you have seen demonstrate that we reduced the backlog by about 50 per cent; it is half of what it was before the legislation came into effect.

Additional resources have been provided to both the department and the Department of Justice to be able to accelerate the process.

I can tell you it is a very focused and enthusiastic part of our mandate and we are all very proud when we reach settlements, as we did recently.

Our minister is certainly very focused on it as well.

Senator Sibbeston: Mr. Borbey, I do not know what your background is, what other departments you have worked for or work you have done, but you are coming new to the job. Can you tell us if you are adding a new energy and initiative to this whole undertaking? When we think of ``Indian Affairs,'' everything is in terms of 20 or 30 years. Nothing happens very fast in the department.

You are a new man on the scene, as it were. Do you think you will step in line with this 20- to 30-year approach to things or do you feel you can add some new vigour, energy and life and get things done faster than maybe other people have?

Mr. Borbey: I feel like I am doing my interview again here.

In terms of my background, I have been with Indian and Northern Affairs Canada for four years. I was the Assistant Deputy Minister responsible for Northern Affairs. Over those four years, I certainly made my mark in the North; it has gained a significant priority for this government and for Canadians. We have put in place some impressive improvements in programs in the North.

The North also involves significant comprehensive claims and self-government agreements. We are proud of the fact that the majority of the North involves settled claims. That creates better and different conditions for First Nations and Inuit people.

Therefore, certainly my role now south of the 60th parallel is to build on that energy and to help First Nations and Canadians build a new and different relationship, both in terms of settling historical grievances through specific claims as well as making progress on comprehensive claims and self-government.

I am also realistic that these things take time. Negotiations are complex. It is great if we can work with First Nations on a more accelerated basis. I think the discipline associated with the act by putting timelines in place is an important change and also motivates things.

I was involved in looking at imposing timelines in a regulatory systems in the North, which is something planned in the current Nunavut Act before Parliament. I believe that timelines, once they are well applied and resourced, are good ways to ensure that energy is there to accelerate the process and not let things drag on forever. It is in no one's interest to let things linger: It is not in our interests, the interests of Canadians or those of First Nations. That is what I hope I will bring to the job.

The Chair: I have a quick question. In the past when we were studying this particular issue, there was reluctance on the part of the department to share research information with First Nations. First Nations were out there having to research information that the department had readily at hand. Efforts were duplicated and there were huge costs. The only people making money were lawyers and consultants.

Has that changed?

Mr. Borbey: Yes. I can ask my colleague to comment on that.

Ms. Dupont: As you mentioned, Mr. Chair, there was a lot of duplication in the past. The First Nations would do some research and we would do some research, and then we would sit down and compare notes, which contributed to taking so long in the assessment phase of the negotiations.

Now, First Nations do all their own research and they are resourced to be able to do that. When verifying the files in the department when doing the assessment, if we come across information we have that the First Nation does not, we identify that to the First Nation. We also ask them what they wish to do with that information, such as keeping it as the record in the file. Some First Nations want to see the whole file back with them so they can have a better analysis.

We do share the information with the First Nation.

The Chair: There is no more of ``us and them,'' then. It is ``we'' that are working together; is that correct?

Ms. Dupont: The First Nation now makes the claim to the department, so we do not get involved with them anymore in developing their claim. They do their work.

When we review their work and look at historical records and find information that is not included, we tell the First Nation and ask them what they wish to do with it. We let the First Nation decide whether they want to have it as part of the claim or what they want to do with the file.

Senator Poirier: My first question is a follow up to a question that Senator Brazeau was asking. When a loan is provided to the First Nation, he mentioned that the cost of the loan or the reimbursement of the loan is given back to the First Nation, over and above the settlement.

What happens to that loan if there is no settlement, if the claim is rejected?

Ms. Dupont: The loans are provided when they negotiate; they are provided contribution funding for the research of their claim. They do not have to repay the monies when they do the research part of it. When they enter the negotiation, they are provided loans to be at the negotiation table.

Senator Poirier: Up to that stage, there is no financial aid offered.

Ms. Dupont: There is, but they are contributions; they do not have to pay it back.

Senator Poirier: Okay.

Of the claims that are rejected, how many on the average come back, ask to go back, or are waiting to go back to the tribunal?

Mr. Borbey: We cannot assess that because the minister has rendered a decision and it is now in the hands of the First Nation to decide whether they accept the rejection or whether they want to put their case before the tribunal. However, the tribunal is not ready to hear cases yet.

Senator Poirier: Therefore, none are coming back because they are not set up to do it. Once it is set up, what is the time frame the tribunal has to listen to the case and make a ruling on it?

Mr. Borbey: No specific timeline has been built into the legislation but our expectation is that it should be fairly quick, since all the research has been done and a fair amount of negotiation work has been invested as well. We are hoping the tribunal will be able to quickly adjudicate and make binding decisions.

Senator Poirier: Do the tribunals start next year?

Mr. Borbey: I cannot tell you.

Senator Poirier: You do not even know that yet.

Mr. Borbey: We are hoping it will be up and running within the next year, but I cannot answer more specifically.

Senator Poirier: Therefore, we have no idea when they will be up and running and we have no idea how many cases could be coming in front of them. Is that right?

Mr. Borbey: Yes.

The Chair: On November 25, Justice Slade will be reporting to the minister, apparently. Then the minister has to report to both houses. At that time, Justice Slade will most likely enlighten us all as to where the tribunal stands in developing its rules, procedures and what have you.

Senator Campbell: Since March 2008, there are about 1,483 claims, according to your figures here, both inventoried and concluded. I have some real difficulty with the ``concluded.'' I suppose the difficulty is that it is concluded from your point of view. I would be interested to know if it is concluded from the other side's point of view.

Of the 1,483, the concluded ones, you have 848. However, for almost 500 of them, you say there is no lawful obligation and the file has been closed. That may be true; I am not questioning that. I understand what you are saying. However, they may be concluded from your point of view, but would you agree that they probably are not concluded from the other side's point of view?

Mr. Borbey: Yes, that is up to the First Nation to decide. Again, some of those were concluded before the tribunal or the act came into effect.

Senator Campbell: So they are toast anyway, right?

Mr. Borbey: They can refile the claim through the new process and we will review it, based on the previous information that was already available.

Senator Campbell: When the tribunal comes into existence — and I must tell you that I am really disappointed in the length of time this process has taken; it is beyond my comprehension why it would take this long to set up a tribunal — theoretically speaking, they could find themselves with a docket of 400 cases sitting there looking at them.

Correct me if I am wrong because I am trying to figure this out. They could have a docket of, say, 400 cases. They have a maximum of $250 million dollars a year to spend. Some of these treaties are in the $150-million range, and these are not just the end; there could be more coming forward. This will go on forever before we can possibly settle all of these claims or come to a conclusion that both parties will accept, correct?

Mr. Borbey: The majority of the cases are much smaller than the cases I pointed out.

Senator Campbell: It does not take long to blow through $250 million when you have 400 cases sitting there.

Mr. Borbey: As we explained regarding the $250 million, we can draw down from future appropriations for that. It was set up with that flexibility so that if there are more cases adjudicated, more settlements in a particular year, we can draw down.

Senator Campbell: In fact, what you have is $2.5 billion sitting out there, correct?

Mr. Borbey: We have already spent some of it.

Senator Campbell: When we were looking at this, we were advised that the cost of settlement for all claims, if they all went forward, was $6 billion. What will happen to the discrepancy between these two?

I want to make this clear that I am not being partisan here. This has been going on through successive governments — Liberal, Conservative, it does not matter; we have all been in the same boat. How will we come to grips with that?

Mr. Borbey: We have identified a maximum contingent liability of about $5 billion associated with claims. That is a maximum.

Senator Campbell: We saved $1 billion there.

Mr. Borbey: We also reduce those contingent liabilities every time we settle a claim. We also are tasked with going back to cabinet once we have completed the three-year transition period originally provided for.

By October next year, we will hopefully have cleared our backlog and will have a tribunal that is up and running. We will be able to go back to cabinet following that to advise cabinet on the current status. If there are issues with respect to funding that is available to complete the process, that will be flagged with cabinet at that time.

Senator Campbell: For all of the negativity that seems to be coming from me, I find the settle-through-negotiations impressive. You have settled one-third. From what we have heard, that is pretty unbelievable, so I congratulate you on this.

I worry for you for the future of these cases that are out there, but I congratulate you on that and thank you for your answers to my questions.

The Chair: I would like to reinforce what Senator Campbell said. The whole process was to be expedited and I hope that the momentum continues and increases.

What concerns me, colleagues, is historically — and this is not partisan in any way, shape or form — the Department of Justice has always been slow off the mark. We heard this during hearings when we were studying this issue. Some of the cases were being held up for years in the Department of Justice.

There may be good reason for it, but it is consistent for years and years. Now there appears to be a bit of a struggle in getting the tribunal up and running and it is under the auspices of Justice. I would hope that we can get this process up and running as quickly as possible.

Seeing that I have no more questioners, I would like to thank Ms. Dupont and Mr. Borbey for their presentation here this morning and the candid, straightforward answers they presented. Hopefully, this process will evolve the way it was expected and should, and First Nations will be better served right across the country.

There is a possibility that we may want to call other witnesses, but we will have discussions about that as a committee in camera.

If there are no other questions, the meeting is adjourned.

(The committee adjourned.)

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