Proceedings of the Standing Senate Committee on
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
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
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.)