Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 18 - Evidence of June 10, 2003
OTTAWA, Tuesday, June 10, 2003
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-6, to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts, met this day at 9:10 a.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this morning, and the last few mornings, we have been discussing Bill C-6.
Welcome Professor Coyle. Please proceed.
Professor Michael Coyle, Faculty of Law, University of Western Ontario: I am honoured to have been asked to appear before this committee today. I am not a politician, nor do I hold a brief for either the Crown or First Nations. Therefore, I think it is worthwhile for me to describe briefly my perspective on the issues and my experience in this area.
This bill is really an exercise in designing a process for resolving disputes. That is the focus that I wish to take with this committee — its effectiveness as a process for resolving disputes that are critical to this country.
I have been invited to attend today as one who has been involved in land claims as a neutral. For 14 years, I have worked as a facilitator and mediator of negotiations between First Nations and the Crown or other levels of government such as municipalities. Since Oka, I have also been involved as a neutral participant over the years in efforts to improve the land claim process in this country. From my mediation experience, I bring a profound conviction that negotiation is the most appropriate way to resolve these disputes.
I know this committee is well educated in this area. Obviously, negotiation presents an opportunity for the parties to build their relationship in an amicable way while resolving their disputes. Negotiation also allows the parties to tailor a creative solution to the dispute in a way that the courts are simply unable to do legally.
Negotiations allow the parties to find modern solutions to long-standing problems that can bring justice without creating new injustices to others who might be affected by claims. I bring the knowledge that negotiations can work. I have been involved as a mediator in several important, successful negotiations between, for example, the Province of Ontario, the federal government and First Nations in Ontario.
My submission today is also informed by the fact that I am a law professor. I teach administrative law at the University of Western Ontario, as well as negotiation, mediation and the law of Aboriginal peoples. My brief discussion today will also be informed critically by the importance of the rule of law and respect for the rule of law in this country.
Lastly, as an individual, I bring the concerns of a non-Aboriginal citizen of this country, an immigrant, and one who shares, I am sure, the concerns of all members of this committee that Canada's record of dealing with the legitimate grievances of Aboriginal people should be one of which we can all be proud.
Let me move to my brief remarks on the bill before answering your questions.
It is helpful, when considering the contents of this bill, to measure it by three criteria. I have already mentioned the first criterion: respect for the rule of law. The second criterion is consistency with the principles underlying administrative law in this country, the principles of law that govern relationships between citizens and the government when the government is making decisions that affect their rights or interests. The third criterion, I think it is helpful to consider, is the likely effectiveness of this bill in resolving Aboriginal claims and dealing with the grievance that they represent, the grievance that underlies those disputes.
I will make suggestions to this committee about how the bill might be improved, having regard to each of these criteria.
The first point is the rule of law. Why do I refer to the rule of law? I refer to it because it is critically important to remember that we are dealing today not with mere political grievances, but claims that the government currently owes a legal obligation to First Nations in this country, because of the way the government has dealt with treaty promises, which of course are now enshrined in the Constitution, or First Nation assets or lands.
Certainly, once claims are accepted under this bill as valid, we must presume we are talking about actual legal obligations of the government, owed to First Nations.
In Canada, rule of law is a foundational principle, and one in which we take pride. It is described in the preamble to the Constitution that this country is founded upon the principle of the rule of law. By rule of law, we mean not only that citizens should be treated equally under the law, but also that government must be subject to the law.
Looking at the bill from a positive perspective, this bill will finally create an independent body with the ability to apply sanctions, or make legally binding decisions in accordance with the principles of Canadian law. That is a positive step. The fact that the process will be enshrined in legislation would clearly also be a positive step, some assurance at least that the government will not lightly backtrack from its commitment to deal with these issues in accordance with principles of law.
At the same time, I should note, that, from my experience in dealing with First Nations in considering this kind of legislation, First Nations have shown considerable goodwill in being willing to accept that Canadian principles of law might apply to final dispositions of their claims, a system of law that the Supreme Court of Canada and other independent commentators have noted has frequently not served First Nations. The fact that First Nations have indicated that they would like to see an expeditious way of resolving their claims in accordance with Canadian law, I also see as a positive step.
However, there is another aspect of the rule of law and that is, the rule of law provides that the government does not ordinarily have the right to decide which of its legal obligations to citizens it will honour and which of its legal obligations it will not. In my view, Bill C-6, however, creates two classes of legal obligations, equally valid legal obligations owed by the government. There is one class that the bill requires to be addressed through negotiation and through a tribunal process, and one class that the government is not required to address at all under the bill.
I refer to clauses 32 and 56(1)(a) of the bill, which create a presumptive limit of $7 million on the financial amount of claims that may be brought to the tribunal.
In my 11 years as senior counsel at the Indian Commission of Ontario, a body created by the federal government, the Province of Ontario and the assembled chiefs of Ontario, while we had much success, I can only think of one claim that I dealt with that would fall within this financial limit. There was only one where even the federal contribution to the settlement would fall under this limit. I will come back to how this limit applies to the provincial contribution and the federal contribution.
Unless the maximum amount for acceptable claims that can be brought into the process is changed by regulation, and I know the bill provides for that, this bill, in my experience, would exclude the vast majority of claims of the sort that are considered to be of importance in Ontario; the kind where I have worked with the parties and found satisfactory resolutions in many cases. In effect, this bill prioritizes those claims that are the least significant in terms of losses suffered by First Nations.
We learned as a country at the time of Oka, the risks of creating arbitrary limits to what claims would be negotiated in this country, where those limits are not based on principles of law. In that case, the government had a policy of not negotiating claims prior to 1867. When I later met with the Indian commissioner and Minister of Indian Affairs and the deputy minister and others, it was conceded that this exclusion of claims prior to 1867 had no basis in Canadian law. It had been designed to be a cost-saving measure to eliminate many claims. That meant that a claim such as Oka could not be dealt with under the existing specific claims policy in Canada in 1989.
Since then, that exclusion has been changed. This illustrates the problems we face if we try to prevent access to a tribunal like this on principles that are not based on law. The principles in that sense appear arbitrary and, in this case, seem to create two classes of claims.
This is the most important point that I will be making in my address. I think that most Canadians would be shocked if, when they reached the age of 65, the government decided that it would select which pensions it would pay and which pensions it would not; in other words, which citizens would be forced to take the government to court to have the government's legal obligation to them fulfilled. I do not think we would consider that in this country.
Here we are dealing with legal obligations that are owed and deciding that a certain class of them, indeed the most important class, arguably, will simply not be dealt with. Those First Nations will have to resort to the courts. You have probably heard other witnesses talk about the court process. It takes 10 or 15 years to get to the Supreme Court of Canada. It further involves resources that many First Nations simply do no have and they certainly do not have resource equality with the Crown.
I believe that the same issue about the rule of law is at stake here as is at stake in the issue I described with respect to pensions.
Under this bill, a second exclusion of claims could go to the tribunal. I believe that the structure of the bill, in allowing for an effort at negotiated resolution and then an opportunity to break impasses, is ideal. That basic framework, I think, is the correct one for dealing with claims in this country.
To focus on the tribunal portion of the bill, in my reading of the bill it also excludes any claim where a First Nation is seeking land as a component of the settlement. Again, this would exclude the vast majority, almost every one, of the claims that I dealt with at the Indian Commission of Ontario.
It is no surprise that First Nations are seeking land because of their relationship to the land. It also is no surprise that they are interested in obtaining alternative lands where their lands have been patented, because they need a secure land base to move forward into the future. This bill prevents, as you know, First Nations who wish to seek land as a component of land in their settlement from having their claim adjudicated by the tribunal.
I note as well that the bill calls for a cumulative cap on the amount of claim settlements in a given year. I am not aware of the amount — it does not appear in the bill — but that raises further concerns to me about the inclusiveness of the process. It will depend on the amount of that cumulative cap.
I have two suggestions with respect to the bill regarding these exclusions. One relates to the financial limit. Ideally, because of the rule of law, there should be no financial limit on what claims can be adjudicated by a tribunal in accordance with principles of Canadian law. The government normally pays properly adjudged legal obligations, period. That is the way other Canadians expect to be treated.
Presumably the goal is fiscal prudence. In my view, if the federal government appoints professional and qualified adjudicators, they, like judges, will be prudent in the judgments that they render about the amounts of money that Canada might owe in regard to historical obligations. Certainly, there is considerable uncertainty in the law that would allow tribunals to find reasonable settlements of these claims.
If the goal is fiscal prudence and if there has to be a cap, I would suggest that the cap should simply be a cumulative cap, which would not create two classes of claims. We should ensure that there is a budget envelope for this that would allow us to make significant inroads into Canada's outstanding legal obligations, while remaining financially responsible as a country. To have both of these limits seems to me, as we say in law, to be having belts and suspenders. We do not need them both to be fiscally prudent. We do not need to create the problems that I have described with respect to the rule of law.
At a minimum, if there is going to be a cumulative cap on claims with which the tribunal can deal, this committee should consider the possibility of allowing all claims minimally into the commission's negotiation process where the government would be required to respond to the claim and where, perhaps, the commission could order non-binding arbitration or a non-binding view on compensation, if that is what the parties request. In that way, there would be a process, hopefully with time frames, for all claims to be dealt with, even if they were excluded by a cumulative cap that this bill might include.
The second area of exclusions I addressed, is the exclusion of claims that involve a land component. I can think of two possible reasons for this. First, the federal government does not generally control a great number of Crown lands in the province. Second, patented lands, lands owned by other Canadians, are generally considered not to be suitable for inclusion in a settlement where people are now innocently holding their private lands. It is generally seen as unproductive and unfair by most Canadians and most First Nations that I have encountered to involve such lands in a lands claim settlement.
There is a simple solution that allows these claims to be dealt with by the tribunal and by the bill without threatening other Canadians, while allowing land to be part of a settlement. Where land is claimed as part of a settlement, the land will come from the province — that is certainly where it comes from in Ontario — as part of the value of the settlement. Where land is included in the claim, I would suggest that they not be excluded from the tribunal proceedings, but the tribunal should and could assess the overall value of the claim and allow the parties to negotiate what the components of that should be to meet the needs of all parties in a modern setting.
Those components might include an apology, co-management of lands, co-management of rivers, as it was in one major claim with which I dealt, or the provision of available Crown land in return for the release of a claim to lands that are now settled. That approach would allow the government to not exclude a great number of valid claims from the process while meeting likely concerns.
I had indicated that I would talk about administration law but, in view of the time constraints, I will deal with the effectiveness of the process briefly.
The effectiveness of this bill can be measured in the process that it would be creating. It can be measured by its flexibility and effectiveness in settling, in a final way, the grievances that this country has faced during the past 100 to 200 years. Its effectiveness would be in assisting the parties to find enduring solutions to these legal grievances.
I mentioned before that, in terms of effectiveness, I believe that the overall structure of the bill is a good one, allowing for negotiation and then allowing for adjudication if there is an impasse on a legal issue.
I do have, however, two final suggestions for improving the flexibility and effectiveness of the process based on my experience in dealing with claims. These two are in addition to the one that I have stated earlier, which was that the bill would obviously be much more effective if it dealt with a greater number of the outstanding claims. That would address the underlying grievance. That would make a significant inroad into Canada's legal obligations.
In addition, I have two suggestions I would like to share with you. The first need not be within the bill. The federal government should involve the provinces that are willing to participate as soon as possible in discussions about the appointment process to this commission and to the tribunal and about how they might be involved. I know from my experience with the Indian Commission of Ontario that, where the federal government simply acts on its own, inserts its criteria and definition of claim, as this bill does, and does not give provinces that wish to be involved the courtesy of hearing about the appointment process and perhaps contributing to it, provinces will be extremely reluctant to participate in that process. They will see it as something foreign to them.
They understand the concept of dealing with their own obligations in accordance with the principles of law, but this bill creates a more cumbersome and different process. The bill appears to include much of the previous specific claims policy.
It is critical to talk to the provinces early. They can be a critical element in finding creative solutions that involve land bases. In many cases, the provinces also owe a legal obligation and can contribute substantially. Fifty per cent of the settlements that we achieved in Ontario were achieved with the assistance of the province.
My last recommendation is that this process would be more efficient if some basic time frames were set out. You have heard from other witnesses that there are no time constraints on the federal government in its assessment of a bill. At no point can it ever be determined to have a rejection of a claim. We know as Canadians, as Justice Estey once said, that conflicts, unlike wine, rarely improve with aging.
One of the problems with claims is that they have been left outstanding for so long. This bill provides few guarantees in terms of specific time frames for governments to follow in pursuing the process or a commitment to deal with claims in as expeditious a process as possible, confirmed in an agreement amongst the parties at the beginning of the process. In order to deal with the problem of these claims having been put off for too long, the bill would be improved if it contained such time frames or such indications that the intent is to deal with claims expeditiously.
In closing, I believe that there are positive aspects of this bill. I have mentioned some respect for the rule of law, some attempt to bring impasse breaking to the way that claims are dealt with, the reliance on legal principles in addressing those claims, and the retention of negotiations as the desired process for resolving them. However, I have put before you concrete steps that would greatly improve this bill in terms of its inclusiveness, consistency with the rule of law, and its abilities to deal in a long-term way with these grievances that have riddled this country for too long. In short these suggestions will help to create a land-claims process of which all Canadians will be proud.
That ends my presentation, senators, and I would be happy to answer any questions at this time.
Senator Stratton: Professor Coyle, your comments about this bill are positive. How do you balance that against the almost universal statements by various presenters that the bill should be thrown out and renegotiated? That is fairly consistent across the board. Few presenters were willing to accept any amendments. They felt that the bill should be scrapped and renegotiated.
Mr. Coyle: I would not want my presentation to be characterized as an indication that I feel positively about the bill. I believe that the basic structure that I suggest of negotiation and adjudication is the right one and one that has been embraced by First Nations. However, the exclusions embedded in the bill and the ability of the federal government to control the appointment process on its own, which is something I did not get a chance to deal with, creates severe problems in terms of the consistency of the rule of law and dealing with the majority of claims in this country.
As someone who personally believes that this country will be a better place when everyone can say that a fair effort has been made to deal with land claims fairly, I am disappointed in some of these key proposed provisions in the bill. In my view — and this is not a political view — these sorts of changes would be easy to make, and those are: eliminating the individual cap; the exclusion of claims with a land component; and requiring consultation with First Nations in the appointment of the persons who work on this commission. Those changes could be made relatively easily in terms of drafting, and I think they would fundamentally improve the bill.
I understand why First Nations are opposed to the bill. I simply did not see it as my place in front of this committee to tell them whether they should recommend the entire bill be scrapped, or whether it should be amended to make it a more effective and fair process.
Senator Stratton: The expressions of concern on the part of First Nations groups are to the effect that the federal government is being paternalistic in its attitude towards the First Nations people, particularly when it comes to the appointment process. Examples of that the appointment process in the Meech Lake Accord, the appointment process for senators, and the appointment process for members of the Canadian Wheat Board. When Bill C-4 was redrafted, it allowed, for the first time, the election of members to the Canadian Wheat Board. There must be a process whereby the First Nations people have an involvement in the process whereby they can bring names forward for the government. Would you not strongly support that process?
Mr. Coyle: Because of time constraints, I did not talk about some of the administrative law issues. However, as important as the actual results in terms of settlements that this bill or process might create is the process itself and the sense of the parties that they have been dealt with through a fair process, not just the result they achieved.
We are dealing here with constitutional rights, claims that treaties have been violated. It will be critical for both sides to feel that the process is an impartial one — that there be a clear perception that the body was created impartially.
I agree that the appointment process should be a balanced one that addresses who should be sitting as negotiators and adjudicators on this panel.
Senator Tkachuk: My first question relates to the appointment process and the second relates to the cap process. Those two issues have often been raised. One suggestion has been that the First Nations put forward nominations and that the government put forward nominations, and they agree on the appointment of one of those persons. Who represents the nation here? Should the appointment of these people not represent the country? We have the First Nations arguing their point of view. Why would they need an appointee to argue their case and why would the federal government need an appointee to argue case? Who represents all the people who are not in the process? How do we accomplish that goal which it seems to me should be the goal this organization?
Mr. Coyle: The process must be one that Canadians see. If this bill were changed so that it would deal with a large number of claims in this country, the process would need to be one that Canadians at large could embrace and see as one that is being peopled by balanced and impartial adjudicators.
There are two possibilities. The one that you described and the one that perhaps other witnesses have described is the labour model — where the union gets to appoint an arbitrator. I do not think that one needs to go to that. One can simply ensure that the appointments, ideally, would be joint appointments of people who meet a certain set of qualifications that all Canadians could see. They could be lawyers, for example, with a certain amount of experience.
What is important is that the parties appearing before this body and the Canadian public at large see that the tribunal is impartial. Efforts to make clear that the federal government, which is after all a defendant in these claims, has not arbitrarily picked people that it believes will be, for example, conservative in their approach is important.
Perception here is as important in administrative law as actuality; that is, that the federal government might pick people who are relatively neutral in regard to these claims. There also needs to be a perception that those people are neutral. That perception can only be enhanced if you have two parties that both agree that this person would be a neutral adjudicator.
Senator Tkachuk: Governments do pass legislation which caps certain settlements. In insurance, they have a cap on no-fault. It is not unusual to have a cap. However, people have argued here — and I agree — that they have never heard of a settlement under $7 million. That bothers me. What should the number be? What should the cap be?
Senator Watt: No number.
Senator Tkachuk: As Senator Watt says, ``no number.'' Should that be the way it is run or should there be a cap?
Mr. Coyle: Let me answer that in two ways. I did not get a chance to note this, but in my reading of the bill, that $7 million does not just describe the federal contribution to the settlement, it describes the overall claim. If a province is in for 50 per cent, it is capping, effectively, the federal contribution at $3.5 million. The first ground-breaking settlements in which I was involved in, in 1994, in Blind River and in Manitoulin Island were each $15 million. I agree with you that the cap seems to skim off most of the significant claims.
You asked me what the cap should be. Of course, my view is that there should not be a cap on individual claims. In an ideal world it would be like the courts where the courts simply assess legal liability and we expect them to do so in a prudent and reasonable way with regard to Canadian legal principles.
If there has to be a cap, it seems to me that it should be a cumulative one, and it should be one that is quite significant. I hesitate to give you a number.
I was at a meeting yesterday with the Six Nations and the City of Hamilton. I know that a number of, say, even $200 million would probably exclude their claim because they have one aggregated claim. Yet, it is a critical claim. It is undermining relationships in southwestern Ontario. Again and again, the discussions broke down over questions of how much they could trust what government was saying to them. They believe that the government has never dealt with the previous promises that were made to them.
I hesitate to put a number on it. I believe that you need consider the questions: What is the estimated liability for claims in this country? Are we serious about dealing with them all? Are we serious about dealing with them all within a generation so that we can move on? Then divide that by the number of years that you expect this commission to work.
Years ago, when I was involved in the reform process, I heard that the specific claims in this country were estimated at around $1.5 billion. That is six years times $250 million, for example, if that number is accurate.
Perhaps other experts can give you the numbers you want.
Because this is a constitutional obligation that is about how this country was created, it is one that merits being dealt with properly. It must be dealt with responsibly. You create a responsible body, a tribunal, and you have judicial review in the courts if things start to go, in the government's view, out of control. If they are not making decisions with regard to actual obligations of the government or normal compensation principles, that can be challenged in the courts.
I know that I have not given you exactly what you were asking for, which is what cap I would like to see. I do not like the idea of excluding a legitimate and valid legal obligation in that arbitrary way.
If there had to be a cumulative cap, it seems to me it would be fair, in light of the imbalance of power when it comes to litigation, that the government should at least fund First Nations that do not fall within the process and must litigate their claims. We have Charter assistance, funding for Charter claims, for example. If the government is not prepared to entrust certain claims to an independent body like this, then at least create a more level playing field when it comes to litigation.
However, the courts are not the ideal place for these claims to be dealt with because of the damaging effect it has on relationships when Canada is saying in court, as Justice lawyers are required to, no, we do not allow any obligations, that is Britain's responsibility, or whatever. However, it would be an option, if there has to be a cumulative cap in this bill, to ensure that there is a level playing field if the matter goes to court.
Senator Christensen: Our witnesses have often reminded us that a task force was established to study this whole issue and to come forward with recommendations. The view of many of those who appeared before us is that those recommendations have not been followed. Have you had the opportunity to do a comparison to see, in Bill C-6, where the roles and the powers of the commission, the tribunal, vary from the recommendations of that task force?
Mr. Coyle: Years ago, I was involved as a technician for the Indian Commission of Ontario. A chiefs' committee on claims led to the creation of the Indian Commission. I was involved, early on, with the joint task force. At that stage — this would be the 1993, 1994, 1995 — it was already clear that First Nations were completely opposed to an individual cap on claims. Ideas like the ones that we are talking about today, a cumulative cap or no cap, were clearly what was desired.
My experience is that input has been given and it has not been incorporated in the bill. At the same time, in the joint drafting process, there were strong views that the appointments process should reflect the input of both parties; and that seems to have been left out of the bill itself. There were long and hard discussions and consultations about those two critical areas that I have described. I do not see the First Nations views reflected in this bill.
Senator Christensen: Did you do a comparison?
Mr. Coyle: No.
Senator Chaput: At the beginning of your presentation, you talked about the rule of law and the lawful obligations of the government. Could you comment on how the current definition of lawful obligation has functioned in practice, and also on the changes proposed in Bill C-6; is there a difference?
Mr. Coyle: I noticed in reading the definition under Bill C-6 that they have excluded a couple of categories of claims that the government is currently willing to negotiate under the specific claims policy. This is another issue that was dealt with at the joint task force level.
In respect of the rule of law, it seems to me that, in an ideal world, both parties would be involved in deciding the criteria by which these claims would be settled. In another world, where First Nations had more political power in this country, they would come forward with principles that they think should apply, not simply those that the common law courts have come up with. That is not the world that we live in.
Given that the bill calls for Canadian legal principles to be applied, in my view it would be much more straightforward and more transparently consistent with the rule of law if the bill simply defined the claim as any claim that the government owes a legal obligation in respect to its historical dealings with lands of First Nations or other assets held by First Nations. It would define it generally as circumstances in which the government owes a legal or equitable obligation in connection with First Nations lands or other assets.
What this bill does, as the specific claims policy does, is create a number of bureaucratic categories, some of which are quite confusing. The first one is where the government has breached its fiduciary duty, and the last one is fraud, as if that would not fall under the first category. It is casting doubt by asking, ``What did you mean when you stated that first criteria?''
The simplest thing, if the bill is not going to reflect more of First Nations values in coming up with what the appropriate terms of a settlement should be, would be to state more simply that it includes all claims based on Canadian law, as I have said, relating to First Nations lands, assets and treaty obligations.
I do note one positive thing. I am trying to be balanced. The committee did talk about certain things that are in here. One aspect of the definition of the claim that is positive about the bill is that it says that claims shall not be rejected merely because of the lapse of time. That is a fair thing to do, given that we have excluded First Nations from the courts legally in the past, and the courts have been saying that they are willing to address these claims today.
Senator St. Germain: Senator Chaput's question basically covered what I was going to ask. Claims should not be rejected because of the lapse of time.
My question to you, as someone who works in the field of Aboriginal law, concerns the fiduciary responsibility of the government. Every time that we have a major government bill, governments send special people into these committees who are generally designated as the sponsors of the bill. It seems to be that, inasmuch as our native peoples have rights, there is a concerted effort to deny these rights. As Canadians, we try to profess that we are self-righteous in our administration of justice, and yet we continually deny the rights of our original peoples. This is why the remark that Senator Tkachuk made — or perhaps it was Senator Stratton — was that most of our Aboriginal peoples who have appeared before us have asked that the bill be scrapped, and then they generally discuss the possibility of amendments.
From your experience, do you think that there is a sincere intent on the part of any government to satisfy the rights, which you described as absolute rights, that these people have in resolving these matters?
Mr. Coyle: I have seen sincere attempts to resolve particular issues, senator. I do not think the government has ever set aside the funds, either for settlements or for government review of claims and First Nations preparation of claims, to ever have a chance of making a serious inroad on those obligations of Canada.
The Supreme Court, as you mentioned, has said that the Crown owes a fiduciary duty to First Nations. Looking at this from a First Nations perspective or from a legal perspective, when Six Nations asks Canada to give an accounting for what has happened to the lands that have gone from 940,000 acres to 40,000 acres today, what is wrong with Canada attempting to do that? If Canada feels that it has fulfilled, generally speaking, to the extent that you can look back, its legal obligations in the disposition of Six Nations lands, as a country based on rule of law, and the Crown as the fiduciary responsibility, which normally in private law would owe a duty to account to a beneficiary, why would it not attempt to do so?
The question that remains in my mind is: Why not invest the resources necessary to deal with the significant claims or to deal with the majority of claims? Why not take a less adversarial approach to claims, where possible, and give our explanation of what happened and say we are willing to have that tested in a neutral process?
The one area that used to frustrate me, in terms of your question about political will, is that both the federal and provincial governments in Ontario have consistently refused over the years, when an impasse was reached in negotiations, to allow a neutral view to be presented to the table, even in confidence and without prejudice. It is possible to have legitimate differences of opinion on the law. A neutral view would give both parties an indication of what the courts might do with a case. Yet, the governments to date, prior to this bill, which only deals with certain claims, have consistently, in Ontario, declined to accept First Nations requests that that happen.
That is a long answer to your question and I apologize. I have not seen the effort that I would like to see from the country to address these in a global and comprehensive way consistent with the fiduciary relationship.
Senator St. Germain: What exacerbates the situation, in my eyes and in the eyes of many — I am a Metis from Manitoba and I saw our land base totally disappear — is that what happens in our society is that, as the populations grow, it becomes tougher. What our Aboriginal peoples are after is their original land base. This is, fundamentally, their connection to the land.
As our population increases, our non-Aboriginal population increases, it makes it that much tougher and much more impossible to resolve these particular outstanding rights that our Aboriginal peoples have. It confuses me as to why governments would not have settled these claims years ago.
The corridor that you work in is most likely one of the fastest growing areas in the developed world. Yet, the will to resolve these claims seems not to be there. I am not talking about just the government of today; I am talking about all governments that have governed in Canada.
This has to be a major concern. As these population centres grow and occupy lands that are traditional lands that are rightfully owned by our Aboriginal peoples, it becomes tougher to reach a settlement.
[Translation]
Senator Gill: I am coming back to this question, which I think is fundamental. Everyone says we are in a society of law, in a state of law. We are very happy about that. When it comes to dealing with the First Nations, it appears that, as a result of special considerations, the right of the minority, that is to say that of the First Nations, is often subordinated to the right of the majority. I believe that's a question of culture.
As a young man, I remember that everything was decided by the funds of the Department of Indian Affairs. It decided whether or not to give us land, whether or not we had to go to school. It appears that has been perpetuated, but at various levels. The Department of Indian Affairs seems to be obliged to decide for the First Nations because the First Nations can't decide for themselves. We're trying to change that culture, which is firmly rooted in the department. That may take a number of generations.
Aboriginal and non-Aboriginal senators would very much like for there to be no prejudice against Aboriginals. When we talk about developing bills, some would like to be able to apply the principles of a society of law.
We are almost always in conflict. We would like to be Canadians and pass bills that support an evolution of rights. We are trying with the statutes concerning Aboriginals, but it is not working. How do we go about changing that culture? There aren't three or four types of law; there is only one. If we live in a society of law, all citizens should receive the same treatment. I liked your remark that the government must also be subject to the rules of law. Some of my colleagues are embarrassed when it comes to questions concerning Aboriginals. If the principle of the society of law were respected, I do not think anyone would be embarrassed. How do we go about changing this culture? I know that is not an easy question.
Mr. Coyle: I took part in the public consultations on the proposed regulations. At first, the public thought that the Aboriginals' claims concerned matters of dissatisfaction, but people did not realize that that concerned rights that had been disregarded in the past. That was accepted by the government. In those consultations, the public was prepared to recognize their claims when they knew that they were based on principles of law. I think Canadians are very open. They understand clearly that our country is founded on the basis of respect for law. The bases of the culture already exist.
I agree that that causes serious problems for Aboriginals who are aware of their rights. They know at all times that those rights are not rooted in reality. They know in one sense that their rights are not worth as much as the rights of other Canadians. That is the major problem for our society. That is not only a theory of administrative law. I agree it is fundamental. I think that Canadians agree that most Aboriginal claims should be treated in a manner consistent with the rules of law.
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Senator Sibbeston: I have a point of clarification. You expressed some concern about whether the claims would cover certain lands. Clause 26. It provides for quite a number of categories of lands that can be the subject of admissible claims. Can you restate the point that you made on that subject?
Mr. Coyle: My point was that all those claims are always based on the unlawful taking of lands. The tribunal is not permitted to hear any claims where the First Nations would like to have lands, normally replacement lands, be part of the settlement.
In fact, it specifically excludes such claims from being sent to the tribunal. The bill provides that, when the tribunal makes a compensation decision with respect to the unlawful disposition of lands, that claim to the lands is extinguished. My reference is clause 57(1) of the bill, which states:
If compensation is awarded under this Act for an unlawful disposition of all of the interests or rights of a claimant in or to land and the interests or rights have never been restored to the claimant, then...all the claimant's interests in, and rights to, the lands are extinguished, without prejudice to any right of the claimant to bring any proceeding related to the unlawful disposition against a province that is not a party to the specific claim.
Clause 35(c) stipulates that the commission can only refer a claim to the tribunal if the claim is only for monetary compensation. That subclause reads:
(c) no compensation other than monetary compensation is being claimed;
I read that as saying that, if a First Nation is claiming that half of the land that was set aside as a reserve was taken away, and it is now, say, the city of Blind River, they are not asking for the city of Blind River, but seeking a package that allows them to acquire available Crown lands. I am describing the Mississauga Treaty 8 claim.
Another example is Ipperwash, which is asking for the return of an army camp. Those claims would be automatically excluded from the tribunal process. They could be having an argument about the overall value of the claim. That is typically the first step. How much is the historic loss in dollar terms? In that case, it was $15 million. If they are arguing about that, the First Nation is not allowed to get help from the tribunal in this process.
Senator Austin: Thank you for your evidence this morning Professor Coyle. There has been some evidence placed before us arguing that a non-derogation clause should be put into this bill. A non-derogation clause generally is to the effect that nothing in the bill would derogate from the rights of Aboriginal communities under section 35 of the Constitution Act.
Other evidence has been that a non-derogation clause would not be applicable in that this is intended to be a final process. If the tribunal acts on the reference of both parties and makes a decision, then the decision with respect to the subject matter before it is final. Therefore, a non-derogation clause would simply allow for a further process to review exactly what was reviewed by the tribunal. Have you turned your mind to that particular issue? Can you give us some assistance?
Mr. Coyle: That is a difficult question. I agree that, if you said that no settlement under this claim could derogate from the treaty rights of a First Nation, you would defeat the finality of the settlements that the parties tried to reach.
It is important that the bill, in its definition of claims and in the way it allows claims to be addressed, gives full recognition to treaty rights and other constitutional rights of First Nations. I raised those concerns earlier.
However, based on the processes in which I have been involved, the First Nations always has its perspective on what its constitutional rights are when it comes into a land claim negotiation. The government has its perspective, which is often somewhat different. In the end, they both look at what kind of forward-looking settlement they are prepared to accept in return for their respective views of what their rights are.
I do not see the idea of making it optional for First Nations to resolve their claims through a process that is at least consistent with the Constitution of Canada as being problematic in itself. I suppose it would not hurt if a clause in the bill read that: None of the terms of this bill — definitions of claims, limitations on claim settlements — shall be interpreted as derogating from any constitutional right of First Nations. That would clarify that the bill should never be interpreted in that way.
In a settlement, a party is allowed to decide that it will forgo constitutional rights, which may be to have a treaty fulfilled in a certain way in accordance with its terms. A First Nation may say that they would prefer, rather than having that recognized, to have this other agreement that better serves them.
Senator Austin: Are you saying that it takes the agreement of the parties to refer a question to the tribunal?
Mr. Coyle: Yes.
Senator Austin: The bill proposes to make the determination of the tribunal final with respect to that question. You said that you agree that that is necessary.
Having done so, I would argue that we do not need a non-derogation clause, because the parties have agreed to make it final. Therefore, the courts would interpret a non-derogation clause to mean that, if the Aboriginal claimant had lost this matter or was dissatisfied with the decision of tribunal, it would still be open to them to go to court on the same set of facts and repeat the procedure. That is not the intention of this bill.
Therefore, if the parties agree that it is final, it should be final without recourse to the courts under some non- derogation provision. Have I said what I think you said?
Mr. Coyle: Yes. I should say that I have not looked carefully at that particular issue. Had I known earlier that I would be sitting here with you today, I would have looked at that more carefully, but my initial sense is that you are right.
I would want to look at the clauses that allow First Nations to opt out of the process before a judgment is reached and ensure, in light of the concern you raised, that it is clear that, as long as they get out before they reached a settlement, they can do that.
Senator Austin: I think that you are absolutely right. As I read it, they can go into the tribunal process, and until the time a judgment is rendered by the tribunal, they can withdraw, which renders the tribunal process nugatory.
Mr. Coyle: Yes.
Senator Austin: That is my understanding of that provision.
Mr. Coyle: I did not notice anything in the language when I read it that would derogate from their rights if they decided to go to court before this process was through. You may want to look at that.
Senator Austin: That is my understanding as well.
The Senate may undertake an examination of the purpose of a non-derogation clause. The government has proposed to the Senate that such an examination be undertaken by a Senate committee. That matter is being debated at the moment. Should the Senate resolve to refer the matter to a committee for study, I hope you would be willing to come back and give evidence on this issue, because it is quite important to the Aboriginal community and to government in terms of process.
Mr. Coyle: I would be happy to do that.
Senator Watt: On the question that Senator Austin raised regarding the use of the non-derogation clause, we should remind ourselves that this is one process. I do not think this type of process should go ahead without a non-derogation clause being included. When you move into another process, as you described, that is when you determine the value of the agreement arrived at with the Crown. Therefore, at the end of the day, you will be touching upon constitutional rights, whether it is a final decision or not.
On this particular process, establishing what is supposed to be meant to be a tool — nothing more than a tool — to achieve what you are trying to achieve, you definitely need a non-derogation clause. If we were told by the Government of Canada, up front, ``We will be touching on your constitutional rights; but before that will be establishing a limit as to how far you can go,'' I do not think anyone in his or her right mind would accept that notion. This is one of the reasons the Government of Canada is no longer trusted by the Aboriginal people. They are trying to kill two birds with one stone.
I make that comment in regard to the non-derogation clause issue to ensure that it is on the record.
The point that I would like to touch upon — and you touched on it indirectly — is whether the provinces will be involved in the negotiations. What normally happens during any such process? You and I have been involved in federal-provincial negotiations. At times the Government of Canada provides a healthy compensation to the provinces if provincial lands are a part of the settlement to the Aboriginal people.
In this structure that they are laying for dealing with claims, what do you think is the rationale behind the Government of Canada putting a cap of $7 million on the amount of the claim, knowing that they will have to provide compensation to the provinces if they touch upon provincial lands? My interpretation is that the Government of Canada no longer wants to deal with the question of land. They would rather provide cash compensation, period. They are not even taking into consideration a third party's interest — it could be the industry — that could trigger certain negotiations. Such negotiations could involve a large amount of dollars and affect a particular community. It puts you in the position where you wonder: What are they really up to with this particular instrument they are pushing forward?
What do you think is the rationale behind this process, the way it is being constructed and dealt with? I have also heard the minister, with my own ears say that this is one step forward toward a third order of government. Let's get real. What is your opinion on this?
I apologize for including so many questions in my remarks, but I have confidence that, considering your profession and the fact that you have been involved with those types of claims, you probably know how to respond.
Mr. Coyle: I will try. On the non-derogation issue that you mentioned, you raised one concern that I share. This does not go to the ability of the parties to make their own agreements, regardless of the Constitution, which I think they should have; but the cap does ask First Nations to release any claim that they have to anything over the cap. I was talking as if it would arbitrarily exclude all claims over $7 million. However, it actually puts First Nations in a very difficult position, where they are asked to surrender what they believe are their constitutional rights with nothing in return — that is, everything over $7 million. Therefore, if a First Nation has a claim that it believes is worth $10 million or $15 million, they are put in a very difficult and arguably unfair position, given the power imbalance, of being asked to surrender some of what they are being advised are their constitutional rights.
It would be one thing if the bill said, you can have your claim dealt with up to $7 million, and if you want more you have to go to the courts. That would not provide the kind of finality that the senator was talking about, but at least it would not ask First Nations to make that kind of choice. I share your concern about that.
I have less contact with the federal government than I used to now that I am teaching in London, Ontario, rather than working here, so I do not know what the thinking is behind excluding land from the tribunal process. In the major settlements in which I was involved, there were often very creative settlements involving land, which the federal government supported. They did not provide the land; but, for example, in Mississauga Treaty 8, it was agreed that the First Nation would own a large portion of the Blind River and share jurisdiction with the province with respect to water quality and levels under a bill that was passed by the federal government and by the provincial government.
We have seen that those kinds of settlements can be acceptable, both to the local population and to First Nations, and they are critical to reaching a deal. I honestly have no idea why they would be excluded. As I say, in virtually every claim that I can remember dealing with, the First Nation wanted to be able to replace some of the land or have returned at least some of the land that they had lost.
The Chairman: Professor Coyle, I would like to thank you for a most insightful presentation. You have been a tremendous assistance to every senator, I am sure. Thank you so much for taking time out of your busy schedule to come before us this morning.
Mr. Coyle: It has been an honour.
The Chairman: I would like to welcome Mr. Erasmus, Mr. Pangowish and Mr. Schwartz from the Assembly of First Nations.
Mr. Bill Erasmus, Regional Chief, Assembly of First Nations: We would like to have Professor Schwartz continue on the points that he was dealing with earlier and try and conclude those comments. The one comment I want to make is that in the earlier presentation we asked for the Senate to consider looking at the suite of legislation that is coming forward with First Nations and asking for you to consider a special study that would look at whether the suite of legislation is in fact taking away from our treaty and Aboriginal rights and the impact of that. Since our last discussion we have sent you a letter, for the record it was also presented to you today. If you could comment on that, or if you are still considering that we appreciate that opportunity.
With that, I think it is important that we move on to Dr. Schwartz.
Mr. Bryan Schwartz, Legal Counsel, Assembly of First Nations: I feel a great responsibility of the gravity of this matter compared to the time left and the number of issues here, but I know this committee prefers to engage in interchange than listen to soliloquy, so I will dispose of my points rapidly. To do so, I will have been to very direct.
I want to deal with the remaining points in the brief. I want to deal sequentially with some points that have been made by federal officials when they were here and the question of amendments.
First, there continues to be statements made in this committee and by federal officials suggesting that the resolution of specific claims must be budgeted the same way as discretionary social spending. We are talking here about binding legal obligations. The federal government in dealing with other binding legal obligations does not feel it has the freedom to budget and pay when and as it sees fit.
Second, it has been suggested there is no legal obligation to create a fair system to resolve specific claims. A member of this committee has suggested that as a matter of law that obligation does not exist. I cannot tell you that it is certain in law it does exist. We are prepared to argue that that obligation exists. It is not discretionary to set up a fair system. The Supreme Court of Canada has said the Constitution implies a duty to set up a fair system to deal with judges' salaries. Here we have hundreds of breached fiduciary obligations. The federal government is in a conflict of interest. The primary duty after fiduciary is to get out of a conflict of interest, and we suggest there is a legal obligation not just a moral obligation to provide fair and effective recourse.
If this is simply a political matter rather than a legal one, which we do not agree with, we think it is a matter of high political morality that an effective system be put in place. A system that is ineffective is worse than the status quo. A system that enables federal officials to say do not yell at us anymore. There is something out there. There is a specific claims body, go argue with them, is worse than what we have.
Three, duty to consult. We believe there was a legal duty on the part of the federal government to consult on the details of this system, which includes listening to us and addressing our concerns. That is a legal obligation, not just a matter of noblesse oblige. The joint task force was a stellar example of how consultation can work. That consultation, contrary to what you have been told by federal officials, ceased with the joint task force. A federal official told us with Mr. Pangowish and myself present and many other technicians, that precise fact. When the joint task force was over, the process of consultation ended. Mr. John has told the other place at a committee what he did was not a consultation. It was not. What was paraded before First Nation was not true to what the contents of Bill C-6 is. For example, First Nations were told that the criteria would be as an existing policy revised in light of modern case law. Modern case law recognizes that a unilateral undertaking can be included. Bill C-6 excludes unilateral claims. You have heard from people in British Columbia and elsewhere what a devastating impact that has on some First Nations.
If you are going create something, a fiduciary can arbitrarily discriminate among beneficiaries. You cannot say to some beneficiaries your claim we will entertain. You people with unilateral undertaking claims we are not going to entertain them. A fiduciary must treat people equally. A principle of the law of equity is that equity equality, and that includes the way beneficiaries are treated.
Fourth, if a system is created even if it is discretionary it must provide for fair hearings. You do not have to create a Human Rights Commission, but if you do it must operate fairly. A body in which people are appointed for short terms by the minister who is most interested in the process, Minister of the Department of Indian Affairs and Northern Development, is not one that any reasonable Aboriginal or informed observer would consider fair. It has been suggested that there are some ways of dealing with this. Not good enough.
If you had a baseball game, to use Senator Austin's metaphor, and said Yankees will appoint the umpire, but he will consult with the players for the Jays, no one would say nice try. We will settle for that. You have to have an impartial appointment process. Now that does not mean in response to Senator Tkachuk's points you have to have a balance of biased people. There are all kinds of ways of getting to an impartial process. The Yukon agreement says we will have a dispute board. We appoint some people, you appoint some people and they appoint the impartial body. The point is to get to a panel of genuine, impartial people, not to have a mix of people who are partisan. This bill does not do that and tinkering amendments, which say, the minister will just consult with some people out there. We will go over the heads of the AFN and find somebody to put a name on the list would not be acceptable.
If a system is to be created it cannot be discriminatory in another sense, of treating aboriginal people worse than any other system treats people. I invite this committee to find another body in which the defendant has the right to infinitely delay the consideration of a claim. Is there any body that says the defendant is allowed to say I am thinking about it. I will get back to you in six months. Still thinking about it. What other plaintiff would be put in that position? What other plaintiff is put in a position where they must fully disclose their case and there is no obligation on the defendant to respond until the very last stages of the process? Fair process have case management by impartial body. The commission as in the joint task force should have the ability to require both parties to make appropriate disclosure and it should be balanced and fair.
Fifth, the definition of criteria. I have already dealt with the point of unilateral undertaking. It is crucial and there is no excuse for the failure of the federal government not to include unilateral undertaking. It is a clear breach of what was promised repeatedly to us who attended the joint task force process and what the federal government said throughout the country. When the minister attended here he again said: Existing definition revised in light of modern case law. Let us read the Guerin case and it says that a unilateral undertaking may be a specific claim. That possibility should not be arbitrarily excluded.
Professor Coyle spoke about pre-Confederation claims. There is a technical glitch that excludes some pre- Confederation claims. I will not get into the details. I think that it was an accident. It can be fixed readily, and it ought to be.
The Federation of Saskatchewan Indian Nations has addressed the third issue regarding the exclusion of some kinds of treaty rights. It is not necessary for me to repeat that.
My next point relates to access. Most claims will not have access to the tribunal. I want to go back to Professor Coyle's point about the ideal system. We believe that the ideal system is the dyad — negotiations and then recourse to the tribunal, if negotiations do not work. If everyone has access to the tribunal, you will rarely need it. The point of the tribunal is to make the negotiation process work.
Professor Coyle was involved in a body that had mediation. How many claims did they actually settle? Do you have a record that states that Ontario settled more claims than anyone else? It did not settle claims because there was no way of forcing closure.
Disputes are negotiated when there is some pressure to settle. There might be a strike, someone gets fired or an impartial body — a court or a tribunal — makes a decision. If there is no pressure, there will be no settlement. These matters should be settled by negotiation within a time frame. That is why you should have access to the tribunal. It is not to habitually use the tribunal, but the prospect of using it will lead to negotiated settlements.
The aggregate cap is another item that was just rushed through and has been given very little thought. It makes no sense to wear, as Professor Coyle said, belts and suspenders. We agreed to a cumulative cap, but not a cumulative cap which is based on the following: You don't count how much money has been spend, you count how many claims are in the system and multiply it by the maximum possible claim.
Suppose you put the aggregate cap at $50 million and the individual cap at $25 million. Lets say that two people put in claims for $10. That would exhaust your ability to use the tribunal because the way in which the bill is drafted uses the maximum possible claim rather than the actual size of a claim that has been submitted.
There is no ability on the part of the Minister of DIAND to waive the limit. The Minister might say that there are not enough claims going to the tribunal and decide to deal with the matter within his budget.
You are locked into a system with a maximum of five claims being dealt with at the tribunal at one time. We have a backlog of almost 600 claims and that is growing. We are talking about a tribunal that could potentially deal with five claims a year.
Due to the way in which the joint task force report has mangled, you have a commission with very little to do. Almost all the power is with the chief executive officer. The position of commissioner could be a really great job. It has nice perks, good tenure in office and pretty much nothing to do. That is most unfortunate.
My next point has to do with the joint appointment process. I thank Senator Austin for mentioning on the record, and I genuinely appreciate his doing so, that there is a problem with the bureaucracy, not just with the senior folks. The federal bureaucrats who wrote this seemed to think it was appropriate to put in preferential access to staff positions for federal public servants. I favour preferential access for University of Manitoba law professors, but I was not writing the bill.
There should be no preferential access.
Senator Austin: Would you take the job?
Mr. Schwartz: I am being facetious. I do not think so. You got me on that one.
If there were preferential treatment, it should be for people who work in TARR, the Treaty and Aboriginal Rights and Research centres, and those who work for band councils. This certainly does not make sense. The Cethi case, footnote 30 in my legal opinion, says that this process is not on.
My next point deals with delay. Delay is what is killing the existing system. There has to be pressure on the government to get serious and come to terms with these claims. Clause 34 is a retrograde step because, for the first time in law, it entrenches in the minister the ability to infinitely delay claims.
There are many ways to do this. I was about to say that there are many ways to skin the cat. After the animal cruelty bill, I should not use that term. We are not hung up on how you do it, whether it is time lines or case management authority that is clearly vested in the commission. There must be something that gives the commission the ability to move things along, especially with all the extra details that have been put into the bill.
Next I will deal with procedural fairness, which is have already mentioned. I will not dwell on it. There must be reciprocal obligations of disclosure. You cannot have the federal government demanding that a First Nation put forward all their evidence early in the process. If the federal government were to reject the claim, it would go to mediation. The First Nation would ask why the claim was rejected. The government could say that it does not like the claim. The First Nation would ask, ``Where are your facts? Where is the law?'' Nothing in the bill requires the federal government to disclose.
The federal government said in the joint task force report that the CEO would act under the direction of the commission. The commission would generally operate collegially. I predict that there will be major problems with the CEO having all this power and not being subject to the commission.
I disagree with what my very distinguished colleague, Mr. Winogron said about the availability of opining. Mr. Winogron is one of the officials who was a great pleasure to deal with on the joint task force report. He is a person of great ability and integrity, although I disagree with him on that one particular point.
You have the CEO and the chief commissioner. I think that half-way through drafting the bill, federal officials realized it was a mistake getting into the dual structure. I hope that they will appoint the person to both position, if this bill is passed. You will still have the basic structural problem of what the commissioner is doing.
My next point relates to the joint review. A review by the most self-interested minister in the entire process is no review. I cannot imagine a minister saying, ``Gee, I did not pay enough money to Aboriginals in the last three years. This is a disaster.''
Next I will deal with regional representation. It was included, but it was taken out. The same bureaucrats who wanted preferred access to jobs on the commission also said that the commission could not leave Ottawa. It is nice work if you can get it. However, claims differ drastically in different parts of the country. To categorically take out the principle of regional representation and insist that offices must be in Ottawa, does not make sense.
Serious issues are involved in the relationship between this body and the courts, and they are spelled out in my legal opinion. They are technical, but they are important. The wrong signals have been given by Bill C-6 about judicial review. These signals basically say, ``Here is my chin; hit me.'' It should have been done more subtly, perhaps following the way it was done in the joint task force report. There is too much of an opening in the bill, inviting courts to second- guess what this body has done.
Senator Austin, there is no question that once the body has decided, with the consent of the parties, that that decision should be final. If there is a non-derogation clause, either the specific takes precedence over the general, or we draft a non-derogation clause to clearly allow that the decision is final. We have no problem with that. That does not obviate our desire to have a non-derogation clause as long as that is clear. Final really is final.
As you might tell from my expedited speech patterns and look of concern, throughout First Nations country there is great concern about how this process will conclude. There are a number of scenarios. You know our preferred scenario. We want the bill to be withdrawn and go back to the table. This committee has signalled that they would prefer to focus on amendments. The House of Commons committee did a great job in identifying issues and proposing concrete language on a many issues. If all those amendments had been passed, the bill would have been dramatically better than it is. A number of organizations have submitted specific language. I would think, if it is not presumptuous to say so, that this committee is close to a decision point.
We are concerned that the bill, in its current form, will be rushed through before the end of this session with just minor tinkering. There are some acid tests of absolutely minimum requirements before someone could say that the bill has been substantially improved. There is a movie called All That Jazz, where someone says to the Bob Fosse character, ``Can you make me a great dancer.'' He says, ``No, but I can make you a better dancer.'' Can you make this a great bill? You cannot do that by finite amendments at this stage. Can you make this a bill that would satisfy the basic principles of the AFN? Probably not. Can you make this bill a better bill? You could make this bill a better bill, but it would have to deal with issues in a fundamental way, not in a tinkering way, not with just a little lipstick on the pig.
There must be a definitive choice that the criteria will not be arbitrarily exclusionary and that unilateral undertakings will not be excluded. The other problems with criteria have to be addressed.
If there is to be a cap, and our position is there should be no cap, there has to be an improved place for other claims to go, other than oblivion. The Federation of Saskatchewan Indian Nations and many First Nations have said that at least the Red Book promised binding on validity. What happened to that?
Going back to the commission to study and investigate would at least preserve the status quo, but the whole point of this was supposed to be an improvement. If all claims had access to binding on validity, then at least all claimants could potentially see some value in this process. However, if there is no binding on validity, I think the acid test for the Federation of Saskatchewan Indian Nations would not be met.
On the subject of appointments, it cannot be a process of names being submitted and the minister making the decision. The process in the joint task force report is consistent with the process in all modern land claims agreements, and that should be the standard. If you want to find different nuances in how to do that, fine. We are interested in the end, not the means. Simply saying the minister will consult is not enough. The minister consulted us on the joint task force report and you can see what we ended up with. We have not been consulted adequately, as the Assembly of First Nations, on the appointment of the existing ICC, despite promises that were made to the contrary.
There must be a serious coming to grips with the issue of delay. There must be a serious coming to grips with the issue of a fair and balanced process in which disclosure obligations are reciprocal. We would hope that there would be some attempt to deal with the structural flaws. A non-derogation clause, if all these other changes were made, would be a plus. However, taking a bill that is fundamentally flawed and adding a non-derogation clause to it, is not acceptable, from our perspective.
To go back to Senator Austin's metaphor about you do not always get a home run, no one over here is expecting a home run. If we could get to first base, then at least we would have something to talk about.
I have to tell you candidly, many First Nations think that, even if it were a bean ball at least we would get to first base. They do not believe they have even that. They have not had a turn at bat. Many First Nations are saying they do not have access to this process. Their claim does not come in here, but they do not know where it goes. Most First Nations know their claim is above the cap and that they will not have access to the tribunal. They are looking at an endless process of delay, sustaining expenses while this is going on. One of the amendments that should be made is that any interest and costs that accrue after the claim is filed should not count against the cap.
Let me just elaborate on one last substantive point. Right now, there is a financial reward to the federal government for delay and a financial penalty for First Nations. The financial reward is once the cap is reached, that is it. Say the cap were $10 million. You may have an $11 million claim, but you file for $10 million. Five years later or 20 years later, when it is settled, all you can ever get is $10 million. The commission cannot give you any compensation for the lost value of the money over 10 years. They cannot give you $20 million. By delaying, you have lost all the interest and all the inflation value of the money. You are getting 25 cents on the dollar. What is the pressure on the federal government to ever settle a claim? Meanwhile, the First Nation is running up more litigation costs. You cannot have a process that purports to be fair under those circumstances.
Our plea to you would be not to rush this through at this stage. If there are going to be amendments, a process of amendment should take whatever time is necessary in order for adequate consultation with us and others to ensure that the amendments constitute an improvement. Our fundamental perspective, of course, is that you should go back to the table and get the whole thing right.
I have rushed through to try to give maximum opportunity for questions. I have had, necessarily, by force of time, to be direct, but I hope this has been of some value.
The Chairman: In regard to the transition period, do you see anything in this bill that deals with transition?
Mr. Schwartz: The joint task force report contemplated a special team to deal with transition. That has not been put in place. The future looks awfully messy. There are three categories of claims: Old system, new system and claims that have nowhere to go in the new system. This will create quite a bureaucratic mess. Issues of transition should be sorted out before any bill is passed.
Amendments to deal with these kinds of issues, including transition, were proposed in the other place.
Mr. Rolland Pangowish, Director, Lands and Treaties Unit, Assembly of First Nations: I would mention that it is not explicitly in the task force report, but there were discussions about it. As I said before, we did not know that the task force report was going to be the final report. We thought it was an interim report.
What we were discussing that is not explicitly in the report, was the idea of a transition advisory team, consisting of federal officials, First Nations technical representatives, chiefs, who could be consulted by the independent claims body to assist in sorting out some of the complications. There are at least three streams of claims, and there must be some fair means of dealing with them.
We do have more detailed information on the discussions that took place, but it is not in the report.
The Chairman: We have been told, or I have been given to understand, that this bill is a framework for the beginnings of an institution relating to a third order of government. Do you see this bill as the beginning of this institution or the framework for it?
Mr. Schwartz: No. This bill was supposed to set up an impartial dispute settlement mechanism. It sets up a mechanism in which the federal government has far too many levers of unilateral control, levers that it can exercise in the context of self-interest. These are supposed to set up an independent body, not a third order of government.
The policy making with respect to this body was supposed to be partnership. The minister said, ``Well, I do not agree that First Nations have sovereignty and that we could only pass a bill with which they agree.'' Who said that? We never said that we have the right to dictate what is in this bill. What we said was it should be crafted in partnership.
This bill excludes partnership with respect to the final issue of how it will be reviewed. If you have a bill that is so flawed to begin with, and the most self-interested minister will unilaterally review it, how can the case for incrementalism possibly be made? An incremental approach would lead to a system that is basically sound. However, there are some inevitable limitations and we will try to expand its jurisdiction as a result of a joint review. We do not have a system that is fundamentally sound, and we do not have a process for joint review.
The Chairman: I would like to thank you all for coming again and for raising these important points and issues. This committee will now go through some heavy negotiations. We will then do a clause-by-clause study, possibly tomorrow night.
I thank you very much for attending and for your undying dedication to assisting this committee in at least trying to come to some sort of agreements on the bill.
The committee continued in camera.