Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 11 - Evidence - Meeting of November 21, 2006
OTTAWA, Tuesday, November 21, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 9 a.m. to examine and report on the nature and status of the Government of Canada's Specific Claims Policy.
Senator Gerry St. Germain (Chairman) in the chair.
[English]
The Chairman: It is my pleasure to welcome you to the Standing Senate Committee on Aboriginal Peoples. I am Gerry St. Germain from British Columbia, and I have the privilege of chairing this committee.
Today our committee continues its special study on specific claims. The committee intends to examine the federal specific claims process with a view to making recommendations to contribute to the timely and satisfactory resolution of First Nations' grievances in this matter.
Let me first introduce the members of the committee. Senator Larry Campbell is from the province of British Columbia, while Senator Lillian Dyck is from the province of Saskatchewan. Today, Senator Dyck is taking part in the ``Women in the House'' program. She will be accompanied by Joy Ding, a McGill University student, who will shadow the senator all day. We look forward to a great week for you, Senator Dyck, and the young lady that will be with you.
Senator Dyck: She is in security right now.
The Chairman: The next member of our committee is Senator Elizabeth Hubley, who is from the great province of Prince Edward Island. Beside her is Senator Sandra Lovelace Nicholas from the province of New Brunswick. Also with us this morning is Senator Charlie Watt from Inkerman, Quebec. He is a long-time senator with great experience.
Our first witness today is Grand Council Chief John Beaucage from the Anishinabek Nation, Union of Ontario Indians. The Union of Ontario Indians is a political advocate for 42 member First Nations in Ontario.
Welcome, Chief Beaucage. We are honoured to have you here. We are pleased that you have taken the time out of your busy schedule to be with us. You can take up to 10 minutes to make your presentation. My colleagues, I am sure, will have questions to ask of you. Hopefully, you can get through it in that period of time. The floor is now yours.
John Beaucage, Grand Council Chief, Anishinabek Nation (Union of Ontario Indians): Good morning, senators, elders, ladies and gentlemen and honoured guests.
As Grand Council Chief of the Union of Ontario Indians, I am pleased to present these submissions on behalf of the Anishinabek Nation to the Standing Senate Committee on Aboriginal Peoples regarding the study on specific claims.
First, I should like to apologize that my presentation and background papers have come to you only in English, and not in French as well as in the official language of the Anishinabek Nation. They arrived rather late. The next time, we will correct these deficiencies.
The specific claims policy, Outstanding Business: A Native Claims Policy, of the Government of Canada clearly states that it is based on the principles of ``fairness, accountability, transparency, resolving historical grievances through negotiation and the need for public communications.'' The UOI respectively asserts that these principles are not enshrined within the structure or the administration of the specific claims policy process; rather, they are fraught with significant obstacles that impede and limit the effective resolution of specific claims.
The obstacles within the specific claims process may be categorized as the lack of independence and impartiality, and the lengthy and onerous process. I will now outline our position on the cause and effects of each obstacle and the proposed recommendations.
The first one is lack of independence and impartiality. The specific claims process fails to respect the fundamental principles of independence and impartiality, as Indian and Northern Affairs Canada is responsible for administering the specific claims process through the Specific Claims Branch, while also charged with the conflicting responsibility of representing and defending the Government of Canada in a specific claim.
In administering the specific claims process, the responsibilities of the Specific Claims Branch include receiving specific claims from First Nations on behalf of the Government of Canada; conducting and confirming research into specific claims; requesting the Department of Justice to prepare lengthy legal opinions on specific claims; assisting the Department of Justice in assessing the validity of specific claims; negotiating the resolution of grievances of First Nations; participating in the Indian Specific Claims Commission inquiries and responding to its recommendations; assisting in implementing specific claims agreements and developing specific claims policies. It is much akin to being judge, jury and executioner in the Old West.
Such administrative responsibilities clearly place the Government of Canada in a compromising position, as it has the power to determine whether a specific claim against itself comes within the mandate of the specific claims policy, whether it has a lawful obligation or beyond lawful obligation to a First Nation, whether it should accept or reject a specific claim for negotiation, the terms in which specific claims will be negotiated and resolved, and the parameters and issues to be addressed in specific claims policies.
Given that specific claims by their very nature are claims in which the Government of Canada has breached or failed to fulfil its lawful obligations or beyond lawful obligations to First Nations, it can be argued that the impartiality of the specific claims process is greatly compromised by empowering the Government of Canada to act in the dual conflicting positions as administrator of the specific claims process and defendant in the process.
The second obstacle in effectively resolving specific claims in Canada is the lengthy and onerous nature of the specific claims process. Although developed as a cost-effective, faster and less adversarial process to litigation, the specific claims process is a slow, cumbersome process that is plagued with a significant backlog of claims.
The steps involved in the submission of a specific claim to the Government of Canada, the determination as to whether a specific claim exists, and the negotiations and implementation of a settlement agreement as a full and final resolution to the grievance are both lengthy and onerous. The specific claims process requires the First Nation to submit to the Government of Canada a statement of its claim, supported by appropriate research and documentation. The claim is then reviewed by the specific claims branch, which conducts additional research if required. The Department of Justice then prepares a legal opinion on the specific claim. The Government of Canada determines if it has breached or failed to fulfil its lawful obligations to the First Nation, whether the specific claim should be accepted for negotiation or rejected, and advises the First Nation in writing of its decision. The Government of Canada and the First Nation then enter into negotiations, which consist of developing a general negotiation framework, an agreement in principle on main issues and a settlement agreement that sets forth the terms and conditions in settling the specific claim. Finally, there is the implementation of the settlement agreement and payment of compensation.
A fundamental flaw in the specific claims process is the failure to have a clearly established time period governing the maximum amount of time a specific claim can remain in the process before it must be resolved or referred to an alternative process. Without established time periods governing the process and consequences for failing to adhere to such time frames, claims are left to languish within the specific claims process — often in excess of 10 years. This leads to a backlog of claims in the process, and contributes to the frustration of First Nations in not having their claim addressed in an expeditious and timely way.
In my own experience most claims last 20 years or more and go beyond the scope of what was intended in terms of having a quick and fair way to look after these claims.
A further flaw in the process is the lack of dispute resolution services that must be engaged by the party should a dispute arise or they come to an impasse that negatively stalls progress in resolving a specific claim. While the mediation and facilitation services of the Indian Specific Claims Commission may be utilized by the parties, such services are not mandatory and are only used at the request of one or both of the parties.
The process of requiring the First Nation to submit a clear and concise statement of its claim supported by appropriate research and documentation to the Government of Canada, which in turn then conducts its own confirming or additional research, is both time consuming and a waste of human and financial resources. Rather than the First Nation and the Government of Canada jointly conducting research into the specific claim, each party is required to separately complete this step, which is often a duplication of work.
A further increase to the lengthiness and onerous nature of the specific claims process is the bureaucracy involved with numerous branches and civil servants of INAC responsible for receiving and assessing and conducting a legal analysis, negotiating and implementing a resolution to the specific claim. While First Nations often have a small team of individuals responsible for the carriage of a specific claim from start to resolution, the Government of Canada often has numerous civil servants individually responsible for only a part or segment of the specific claim, ranging from researchers, to policy analysts, Department of Justice lawyers, claims evaluators, federal negotiators and implementation staff.
The disparity between the human and financial resources available to the Government of Canada, through its various branches, departments and experts, and the often limited human and financial resources available to First Nations in researching and conducting a legal analysis, assessing and negotiating specific claims resolutions, further compounds the onerous nature and length of the specific claims process for many First Nations. In engaging in the specific claims process, First Nations often lack the financial resources required to adequately research their claim and participate in the specific claims process; they often lack trained experts in the fields of research, legal analysis and negotiations, and must often contract researchers, lawyers and negotiators who are not from their community to assist in the advancement of their specific claim.
I have nine recommendations that I will go through.
The Union of Ontario Indians recommends that the responsibility for administering the specific claims process be removed from the Government of Canada and be overseen by an independent and a neutral body.
The Union of Ontario Indians recommends that a new specific claims policy be developed which establishes set time periods to govern the administration and resolution of specific claims and outlines consequences for failing to adhere to set time periods.
We recommend that a new specific claims policy be developed which requires First Nations and the Government of Canada to undertake joint research in a specific claim, thereby eliminating the process of each party conducting its own separate research.
We recommend that a new specific claims policy be developed which includes a mandatory dispute resolution process to be undertaken if the parties reach an impasse or come to a dispute that negatively effects the resolution of the specific claim.
We recommend that a new specific claims policy be developed which respects and upholds the changes in case law and treaty interpretation, such as the use of oral evidence.
We recommend that First Nations and the Government of Canada work together to determine what limits, if any, there will be on the amount and type of compensation that may be awarded under a new specific claims policy that will be developed.
We recommend that First Nations and the Government of Canada jointly work together to develop a new specific claims policy and to establish an independent and neutral body to effectively resolve specific claims in Canada.
We recommend that greater human and financial resources be allocated to train First Nations in the areas of research, legal analysis and the negotiation of specific claims.
Finally, we recommend that the First Nations and the Government of Canada work together to develop public educational programs and materials on specific claims and the history of First Nations.
That concludes the oral portion of my presentation. Thank you very much for your kind attention.
Senator Hubley: Welcome to you this morning. You have certainly brought to us a comprehensive report.
On your first recommendation, regarding the independent and neutral body, how do you envision that? What is the makeup of an independent and neutral body? It is something that has come forward in other presentations and I think it is an important recommendation to be making. Do you foresee a separate department with its own ministry to address the specific claims or do you envision some other type of body for that independent and neutral body?
Mr. Beaucage: It gets to be difficult when you are looking at ``independent'' and ``neutral'' and how that can be tied to an accountability process within the Government of Canada but which will also be accountable to the First Nations in terms of its outcomes.
Whether or not it should be reporting directly to a minister is something that would have to be looked at very closely. I think it would be some kind of commission or authority that would take people such as retired justices or retired First Nation people — maybe not even retired — people who have a broad range of experience in these matters and can look at claims in an impartial way and look at the pros and cons to determine if the claim should go through. That would be bertter than having one body looking at all aspects of reviewing a claim and then defending it on behalf of the Government of Canada. The Government of Canada has every right to defend a claim, but it really should not be the one to review its merits.
Senator Hubley: The Indian Claims Commission made a presentation to our committee. To me it was positive in that they had brought together what appeared to be all of the players. It was not just bodies working separately; it was people working together to try to resolve inquiries, claims, and so on.
Do you see that makeup being applied in other areas of specific claims?
Mr. Beaucage: I think that would certainly work. To work together to look after some of these things is certainly a laudable process. We must encourage that. Right now, however, we have so many claims across Canada and there are so few being resolved. I was part of a claim process in my own First Nation when I was chief and I inherited this after it had been going on for 16 years. I took it on for another five years. You are looking at 21 years of a claims process before we got to a final agreement. We had been through five or six band councils, there had to be retraining of new band councils and then we went through four or five negotiators. I do not think resolving a claim should be a career for anyone, not one claim. It should be looked after in a short, concise process where everyone looks after these claims.
Senator Hubley: If the time frame was in legislation would that be helpful?
Mr. Beaucage: It would be helpful, yes.
Senator Hubley: Do you have any suggestions as to the time frame?
Mr. Beaucage: Five years is probably a reasonable time frame but in extenuating circumstances, perhaps 10 years. If it went beyond five years, it should go to some other kind of process with a review by an independent dispute- resolution process. I have been involved in the negotiations and I know that if two negotiators have the resolve to get things done, five years should be plenty of time. Even the most complex issues can be resolved within five years; after that, for another five years, there would be another kind of process targeted to fulfil a mandate to look after the specific claim.
Senator Hubley: Thank you.
The Chairman: I have a quick question to you, Mr. Beaucage. Do you have any idea how many people it would take for the independent body to be able to deal with the number of claims to be resolved? Do you have a suggestion as to that number? An independent body, as Senator Hubley has aptly pointed out, has been one of the major recommendations for handling the problem of dealing with specific claims. How many people do you think it would take, if it were set up in the form of a court system.
Mr. Beaucage: That is a tough question to answer.
The Chairman: That is why I put it to you.
Mr. Beaucage: Probably each province and region should have some portion of this independent body. To have impartiality, people who work on Saskatchewan claims, for example, might come from other provinces. Such impartiality would allow for a completely objective review of the merits of the claim. We might be looking at five or six people dedicated to each of the provinces looking specifically at a provincial system with the goal of clearing the specific claim for each province or region.
My guess at a number would include what would be required to truly resolve the backlog of claims with a real targeted goal in mind to look after a certain number of claims within a specific number of years.
Senator Lovelace Nicholas: Do you think archaeologists should deal with specific claims? Should they be part of this independent body? Do you think that as witnesses in court they would benefit these claims?
Mr. Beaucage: An archaeologist would be helpful as a witness, but once we open that up there could be many witnesses that have scientific research into specific claims in other aspects of claims by First Nations. For instance, metallurgists have done research that could pertain to resource sharing. There is evidence that copper taken from areas around Thunder Bay has been found in Florida and other areas in the southern United States. Copper that might have been removed from the ground 500-600 years ago has shown a process of mineral usage by First Nations people that has not yet been explored. Metallurgists from the University of Toronto have discovered this particular piece of evidence. That might aid in many different areas of these resolutions. I do not think we should leave any stone unturned in terms of expert witnesses providing information to the specific claims process.
Senator Lovelace Nicholas: If you were to use archaeologists as witnesses, should they be selected by First Nations people?
Mr. Beaucage: In a court process, an expert witness' credentials are reviewed by the judge or by the impartial secretariat, commission or authority, whatever it might be. I would think that an expert witness should be vetted and approved by both parties in terms of the depth of the expert's field of knowledge.
Senator Dyck: Thank you for your clear presentation and recommendations.
The research process interests me. You have made some very good recommendations with regard to the time it has taken for a First Nation to undertake its research and for INAC to undertake its research. It seems like a somewhat slow and duplicated process.
In recommendation No. 8 in your presentation, you recommend that additional resources be allocated to train First Nations in the areas of research and legal analysis. Would you also consider it appropriate to have the same kind of training available to both INAC officials and First Nations people so that they receive the same information in respect of the examinations of the merits of specific claims? In that way both groups could aspire to the same standard and know what to look for in a claim and what you might need to produce to make it a valid claim. Has anyone ever given you a list to indicate what they are looking for, the standard used in the past and the standard to be used in the future?
Mr. Beaucage: That is a great idea. Often, we could look at what is required for a specific claim. It is akin to having a hockey game in an arena with the lights out; every now and again you score but you are not sure why. If we were to have a specific claim process whereby there was training for both sides in an equal and fair manner, then both sides could aim to resolve claims with the same information and goals in mind.
Senator Dyck: We might even need to go back one step to develop jointly the specific elements that define the merit of a claim. Before we even begin the claims process, there should be a standard that everyone has agreed to through this independent body so that it is taken right from the beginning. As you say, some claims are successful and some are not successful. Does anyone know what makes a successful claim? Perhaps that should be decided ahead of time.
Mr. Beaucage: Yes, that would improve the process and would speed it up a great deal.
Senator Dyck: Do you consider the undertaking of the current research a factor that contributes more to the delay rather than to the claims that have been accepted but are waiting for a legal opinion? It has been suggested that the bottleneck could be solved, perhaps, by hiring more lawyers. Do you believe that is a critical point or is the research causing delays?
Mr. Beaucage: I do not know whether I would ever advocate hiring more lawyers, because I do not think that would speed up any process. It would seem that the sense is to do as much research as possible because of the uncertainty as to what is wanted. Researchers are hired to deliver volumes of material because they are bound to reveal what is wanted. However, that depth of research takes a great deal of time and is very costly.
It allows researchers to make a fairly good living, but the problem is that we should be a bit more specific and target the research itself.
Senator Campbell: Thank you very much for your presentation. As the other senators mentioned, you were clear and concise.
With regard to the neutral body, may I suggest that we already have models that we could look at? For instance, provincially, there is the Workmen's Compensation Board and the Labour Relations Board; indeed, we actually have, in form and function, four bodies to look at this, and I do not think it would be all that large a step to put it in. The difficulty, of course, is to make sure it is neutral, that it is not stacked, and that it comes out with a decision.
If we did have a neutral body, would its decision be binding? Or would it be simply a case of its coming out with its decision and then we go into another phase, where one side or the other is allowed to appeal?
Mr. Beaucage: I agree with you that there are bodies like the Workmen's Compensation Board and so on. Those bodies do exist; they do form a useful function and are very efficient. That probably would be something that we could pattern a neutral body on.
I also think that perhaps there could be room for one appeal on either side. That would allow both sides to review the decision and look at its merits, but then have one opportunity to make an appeal without further facts — very similar to a court case.
Senator Campbell: For instance, if you have a quasi-judicial body and you do not agree with it, you can have what is called a judicial review.
Mr. Beaucage: Yes.
Senator Campbell: I have difficulty in understanding why it should take so long and be so complicated to research a claim. I cannot understand it. Looking at the diagram of all of the claims, it just cannot be that complicated. Yet it has been 21 years in the case of just one of your claims. That would never be allowed in any other forum.
Both sides, quite frankly, are losing opportunities. You are losing the opportunity to benefit from the minerals; you are losing an opportunity in respect of what you could have done with that land.
What makes it so complicated?
Mr. Beaucage: I wish I had that answer, but that is the process that has been followed in all provinces — and we see the backlog. I was a chief for eight years in my own community. About two weeks after I first became chief, it was our first negotiation session. I went into the session cold; I had no idea what went on, but the first thing I said was that I would honour all of the negotiations from chiefs and councils previous to myself. Whatever that meant, I would honour what they had done.
That is not always the case. We have a two-year process under the Indian Act for chiefs and councils. Conceivably, every two years, you could have a new chief and council. That is just on our side. Conceivably, this new chief and council could say, ``I don't like what those guys did. I ran on a platform of this; therefore, whatever was done here, I will throw out the window.''
We could also say that with a lengthy process, negotiators on the government side could change several times. There could be changes in government and changes in policy in terms of how these claims are dealt with. As the process elongates, you have all the different players, which actually leads to inefficiency and the onerous time frame by its very nature.
Senator Campbell: I can only hope that this committee can come up with some recommendations, because it is not acceptable as it is for either side.
Mr. Beaucage: You are correct.
The Chairman: Do you think there is a mindset that the government just does not want to recognize this as part of the debt? They treat it as a program; they fund it as a program — underfund it generally — and it is one of the real glitches in the mindset of government. They hope it is like a bad cold that will go away.
Mr. Beaucage: I think that has a great deal to do with it. Many claims involve monetary compensation; they involve providing back to a First Nation land that was incorrectly taken away from that First Nation.
I cannot imagine what would happen if, all of a sudden, all of the claims in Canada were resolved in this next fiscal year. What would that do to the monetary situation in Canada? How much money would have to go out? It might be politically a bad choice to have everything happening at once. It might be a bad choice to have resolution in a short time period. Let us amortize it over a couple of generations to make sure we are not hit too hard. That may be a strategy, which is difficult on all of us.
Senator Campbell: We know that it would be about $6 billion, if it were paid out. We have $13 billion as a surplus, and we are probably going to be looking at the same again. Do you not think it just makes sense to say, ``Look. Enough is enough; finish this off; this is it.'' and get on with it?
On the one hand, you cannot say we want to help the First Nations become independent, viable and vibrant, and on the other hand, drag this stuff out. It is not morally right to drag this over two or three generations as is being done.
We know that there will be a surplus. Senator St. Germain is right; they are not looking at this. It is successive governments. I am not saying it is the Conservative government — this has been going on for generations. This is not seen as a debt on the books of Canada. You will not find it anywhere.
Mr. Beaucage: Yes, you are correct. It should be labelled as a contingent liability. It is one of those things that have been left as legacies from one government to the next. It is something that my people have to contend with, year after year; and all the while our people are still in abject poverty. We still have health, water and housing problems and yet this is still there, year after year.
Senator Campbell: Maybe we should make a recommendation to the Auditor General that she check to ensure that the Government of Canada is following proper accounting procedures. Clearly, they are not. Maybe it is time they did. If we had this on the books, maybe they would be paying more attention to it.
Senator Sibbeston: My question relates to the matter of independence. A lot of your recommendations deal with wanting an independent body, away from government and having clear mechanisms, to be able to resolve disputes. Were any representatives of your union involved in the task force that was set up in the 1990s to deal with specific claims?
Mr. Beaucage: I do not know if we were involved. During the 1990s, I was a chief of my own community. I was not heavily involved with the Union of Ontario Indians. I was trying to work out my own claim within the Wasauksing First Nation near Parry Sound.
Senator Sibbeston: Eventually, what came out of that task force was Bill C-6, a bill to deal with specific claims. It had some shortcomings. It did not go as far as the task force recommended; consequently, many of the First Nations did not approve it. Still, the mechanism is there with some changes. There is a possibility. That is what the government has at the moment.
When you talk about a completely independent and neutral body apart from government, do you, from your experience, think it is within the capacity of the federal government to create such bodies?
Do you think that governments are capable of doing this to resolve the problem?
Mr. Beaucage: I think the government could create such a body in conjunction with First Nations and that there would be a dual purpose or a dual responsibility with the government and First Nations to create the body in such a way that there is engagement of the First Nations in making sure it is a neutral body that is very goal oriented, and that the goal is to look after the backlog of claims and to have real progress each and every year.
Senator Sibbeston: I noticed in the paper last week that there was a settlement in B.C. for $31 million for the grounds on the lands that the B.C. legislature is situated on. There was some historical basis for that claim, obviously; but is part of the problem with specific claims that the claims are so historical, so nebulous and vague that it is difficult to define what the claim is? Without question, First Nations, Aboriginal people, were on the lands that now comprise Canada. They were almost on every portion of the land, and in the Northwest Territories, and areas like that, that is recognized. Large quantities of land are given over to Aboriginal people there, in part because there is no one up there and they can afford to do that, I guess; but suppose a group here claims that at one time this land that even the Parliament of Canada is situated on is their land. Are some of the claims as nebulous and vague as that? Is it difficult to quantify and define?
Mr. Beaucage: One of the difficulties is that we, as First Nations, never did have the concept of fee simple in terms of the ownership of land; historically, we migrated from one area to the next, and it was only after the acceptance by the courts of oral evidence, oral tradition and stories passed on, information passed on from elders to the next generation, that evidence became credible within the court system. One of the difficulties, obviously, is to make sure that all of the evidence from elders is passed on. We find that with our languages right now; often the languages are not passed on as they should be.
That is one of the difficulties: to ensure that there is good strong evidence and corroborating evidence as well, because there are no written records.
Senator Sibbeston: Mr. Chairman, I thank the gentleman for his presentation. We do have an opportunity now in this stage of our history in Canada to do something about it, and on the federal government's side we have Mr. Prentice who has many years, at least ten years, sitting on the Indian Claims Commission. We have a good situation where we have a minister who does understand the situation and sees the seriousness of the problem and can make decisions.
The only question is whether there is the political will in the government to come through with a lasting solution to this problem. On our side in the Senate we will do our best, because we have heard evidence that there is a need for an independent body and a body that can make decisions. We will do our best to make recommendations to the government and hope that it is an opportune time in our history to have something done about it.
The Chairman: Thank you, Mr. Beaucage. We appreciate the clear, concise, precise recommendations that you have put forward. I am sure that you will see some of them in our report.
We have now, as our next witness, honourable senators, Mr. Peter Di Gangi. He is the director of the Algonquin Nation Secretariat.
Peter Di Gangi, Director, Algonquin Nation Secretariat: Thank you, Mr. Chairman. I want to say at the outset that normally one of our chiefs would be present to make the presentation, but there was a scheduling issue. We have our annual assembly taking place this week and they were unable to attend; so we worked together on the presentation that will be made and I was mandated to appear on their behalf.
Certainly, on behalf of the communities I work for, I would like to thank the members for inviting us here today.We appreciate the fact that your committee has taken the initiative once again to look at the matter of specific claims, and we recall that back in 2003, the same committee held hearings on Bill C-6, the Specific Claims Resolution Act, at which time we also made a presentation.
I would like to review quickly some of our background. Our tribal council represents three Algonquin First Nations whose territory lies in Quebec and Ontario: Barriere Lake, Timiskaming and Wolf Lake. Each of the member communities has very different fact situations, which gives rise to a variety of potential claims under specific claims policy.
Wolf Lake is one of the few historically recognized bands in Canada that has never had a reserve set aside. It is what is known as a landless band, and for that reason its members are denied many of the entitlements and programs enjoyed by other First Nations.
On the other hand, Timiskaming First Nation did obtain a reserve, which was surveyed in 1854, but through a seriesof various boundary changes, re-surveys and approximately40 surrenders, the size of the reserve was reduced from over 100,000 acres down to about 5,000 acres today.
The reserve is a checkerboard with its lots interspersed with those of the neighbouring municipality of Notre Dame du Nord, which creates a number of jurisdictional and other issues, creating a singular kind of situation. The Algonquins of Barriere Lake obtained a reserve in 1963. It is located in La Vérendrye Wildlife Reserve in Quebec. Because of the policy of the Quebec government, they received only 59 acres, which is not enough to meet their housing and other needs. There are issues related to that as well as to the operation of the Cabonga and Dozois reservoirs adjacent to the reserve.
Something else to consider in terms of specific claims is that our member communities, along with other members of the Algonquin Nation, are parties to treaties with the British Crown that were concluded in the period between 1760 and 1764. There are a number of potential claims arising from the Crown'snon-fulfilment of the provisions of those treaties. Another point to add is that the Algonquin Nation has not entered into any treaties that deal with its Aboriginal title interests in the land. Therefore, in effect, the communities that I work for, as well as the other members of the Algonquin Nation, have outstanding Aboriginal title to the Ottawa Valley, which includes Parliament Hill.
It was not until about 1996 that we began to undertakeclaims-related research for our communities. That wasalmost 25 years after the federal government first announced its native claims policy. We came into the game late and, since then, we have been trying to make up for lost time. Wolf Lake First Nation has a claim in the system for reserve lands. It has been about ten years in the system and is currently the subject of an inquiry at the Indian Specific Claims Commission. Timiskaming's potential claims are very complex. They cover both sides of Confederation and spill over into Ontario and Quebec. In order to better manage the development of their claims, we entered into a cooperative research agreement with Specific Claims Branch of Indian and Northern Affairs Canada in spring 2005 to try to expedite the review and processing of their claims. Pursuant to that agreement, nine claims allegations were submitted last year for review.
Based on our experiences and a review of your objectives regarding the examination currently underway, we have some comments that we would like to present to you today. They are not exhaustive, but we hope that they will assist in the work of the committee.
Primary among those is the need for a truly independent process. The view of the communities that I work for is that the biggest problem with specific claims policy and process remains the fact that it is neither fair nor independent. In fact, the defendant is the one who controls the policy, the process and the flow of funds. This inherent conflict of interest remains the biggest barrier to obtaining a fair and efficient claims policy and process. We would, therefore, urge the committee to acknowledge the need for a truly independent claims body consistent with what was recommended in the joint task force report tabled by officials of the federal government and those representing the Chiefs Committee on Claims in November 1998.
This remains the best hope for a truly fair and equitable approach to resolving the Crown's lawful obligations to First Nations. That was the main recommendation that we put before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development when we appearedin 2003, and it remains the case today.
In the absence of policy reform, there are some critical process issues in our view and in our experience. We know that when the Specific Claims Resolution Act was shelved several years ago, it appeared that the federal government was setting aside its attempts to try to develop a truly independent claims body. Since that time, we have been told that the stated goal of Specific Claims Branch has been to make the existing policy fairer and more efficient.
Where possible, we have worked with Canada to try to improve the process, with mixed results. We would like to highlight some of the issues that we think deserve some attention in this regard. One issue that we would bring to your attention is staff turnover at Specific Claims Branch, at the Department of Justice Canada and at the Indian Specific Claims Commission. In our experience, this is a huge drag on the system. Many of our claims have their roots in the pre-Confederation era and are very complex. On the Wolf Lake reserve claim, we have had at least four different Department of Justice Canada lawyers and six different analysts from Specific Claims Branch who have had carriage of the file over the past ten years.
In contrast, and despite many challenges, we have been able to maintain continuity in our technical team throughout this period, but it has been a challenge because of funding issues and other matters. On the federal side, we find that there is little or no corporate memory and staff seem to be moved elsewhere as soon as they become familiar with the facts. It is our view that this has to be costly and extremely inefficient.
I have been involved in this kind of work for about 25 years, and over that period of time this issue has been raised on many occasions with our federal counterparts. The issue does not require big policy changes, but there has been almost no movement or improvement over the past quarter century. It is difficult to understand how the process can be made more efficient so long as there is continual change of the people on the other side of the table.
Another issue that we would draw to your attention is differential access to federal records. As you know, specific claims are lawful obligations on the part of the Crown and they have to be fact-based. They cannot be allegations drawn out of the air. They have to be documented, and the fact of lawful obligation must be proven, which requires research that often relies on federal records. One problem we face working for First Nations is that there is differential access to these records. This gives an immediate advantage to our federal counterparts in terms of documenting and completing the research related to specific claims.
To summarize briefly, federal employees and third-party contractors employed by Canada have unfettered access to federal records. They are at the front of the line when it comes to retrieval and review of those documents. In contrast, First Nations researchers face numerous restrictions on the materials. In part they are access-exempted because of the Freedom of Information and Privacy Act, but in other cases we face waiting periods of six to eighteen months for restricted or unaccessioned materials located at the Library and Archives Canada. These impediments ensure that researchers are always at a handicap when carrying out research because we cannot get access to the same materials and we must wait longer to get them in certain cases. Therefore, the federal government, which is the defendant, has an automatic advantage, and in many cases First Nations must rely on federally conducted counter research, which is also known as clarification research, to fill in the gaps with respect to information required to fully document a claim.
This strikes at the heart of the conflict-of-interest issue and also creates significant inefficiencies in the system. Although First Nations are expected to come up with the allegations and document them, there will always be questions about whether it is a full picture, because certain records have not been made available. We have provided you with a more detailed brief in the background package that outlines this issue. The bottom line on this point is that it creates a perverse incentive against First Nation-directed research in favour of research that is either controlled by, or greatly influenced by, the federal government. This issue has been raised with federal officials over the past ten years, at least. They have acknowledged that it is a problem, but there has not been much will to address or resolve the issue.
Another issue that we feel needs to be considered is counter or clarification research, which I touched on in the previous point. In our discussions with Specific Claims Branch over the last few years, we have fried to find ways to make the existing process more efficient. Between us there seems to be consensus that a tremendous amount of time could be saved if the parties were able to reach agreement on the facts before the claims narrative went to First Nation legal counsel for drafting of legal submissions and before the Department of Justice received the materials for legal review. This would save time and money at the research end as well as legal costs, because legal counsel would have to review only one narrative, one set of documents, et cetera, rather than competing reports and different document collections. Certainly, with the Wolf Lake Reserve lands claim at the Indian Specific Claims Commission we took this approach and went through a process whereby Specific Claims Branch reviewed the research, identified any gaps and signed off on the facts before it went to legal counsel. That saved time and resources. Similarly, we are trying the same approach with respect to Timiskaming's specific claims. While we have had some successes, in some cases it has not worked out in the way that we had hoped, but we are giving it a try.
Another issue is lack of financial and human resources, not only on the First Nation side but also on the federal side. Funding available for First Nations research has remained static for over a decade, meaning that inflation has eaten away much of existing allocations. This affects the development and completion of claims.
The idea of funding being spread over more than one fiscal year is another issue. Basically, claims research units, even though some of them have been in existence for 25 years or more, are never guaranteed funding to maintain continuity or to continue their operations. There is a constant process each year of applying for funds, justifying funds and receiving funds, which affects the ability to plan ahead. It also creates many challenges in terms of maintaining continuity of staff.
On the federal side, the lack of human and financial resources is also a major drag on the system. As I was preparing for this session, I reviewed some of the testimony that you have heard over the course of the past few months. I noticed that the Director General of the Specific Claims Branch, Audrey Stewart, came here and provided testimony in the month of June. At that time, she indicated that their internal operating budget had been reduced by about one-third over the past five years, from around $6 million to approximately $4 million. Her colleague Sylvia Duquette from the Department of Justice also reported that their funding had decreased significantly during that period. It also appears that many funded positions within SCB and DOJ remain unstaffed.
I should just point out that this is very similar to what occurred in the years leading up to the Oka crisis of 1990. Successive governments simply did not put much of a priority on resolving these issues. They continually cut back on the funding to undertake research and negotiations. In the view of some people, that was part of the contributing factor to what happened that summer in 1990.
Following that, the government of the day proceeded to try to inject more funds into the system. That is when you had the efforts toward the Indian Claims Commission being established and also the efforts that eventually led to the joint task force. However, all of that energy and motivation and political will dissipated over the years, and we are right back to where we were: funds are being cut back, despite the rhetoric that the government of day wants to resolve the issues. That is certainly an issue that we feel needs to be highlighted. As mentioned already, although additional resources are not the complete answer, they are an important part of it.
We noticed also in your objectives that one of the things you were asking about was lawful obligations. Is the Specific Claims Policy an appropriate vehicle for addressing outstanding lawful obligations? In our view it is not entirely adequate to the task right now. One of the main reasons for that is the inherent conflict of interest: the defendant is basically controlling all aspects of the process and the policy.
As an example, one of the complaints about the proposed Specific Claims Resolution Act was that it would have narrowed the existing policy definitions of what constitutes a specific claim. To us, that was an example of the federal government's redrawing the policy boundaries to suit its own interests.
Another problem with the prevailing policy frameworks is that, generally speaking, they have not kept pace with case law. This is sort of a vicious circle. You have people faced with deficiencies in the policies or the process, so they go to court to try to resolve their issues. In cases where there is a win, the policy is not changed to reflect that, and you end up driving more people to court as a result.
As but one example, in the fall of 2004 the Supreme Court of Canada ruled in the Haida and Taku River cases. Those related to situations in British Columbia where tribes asserted Aboriginal title. They were not in full-blown negotiations; the claims had not been accepted, but they asserted title and they had evidence to back it up. The court found that in cases like that the Crown has a legal duty to consult and, where the evidence warrants it, to accommodate.
In the past couple of years since that ruling came down there has been no effort at the federal level to develop a policy in response to those cases. People are trying to resolve it on the fly in an ad hoc manner, and you are finding that people are continuing to go to court to resolve these issues.
The Mikisew case is another one that came out of a treaty area, based on the principles in Haida, and it was because there was no policy framework to address it. There was another case quite recently that came down similarly. The lack of policy responses to case law is also creating a situation that is driving people to the courts.
I would like to highlight some of our recommendations. Certainly, these are not exhaustive or comprehensive. They are only based on our experience in trying to address these issues.
This is not a partisan issue, although I heard some comments to that effect during the previous questions and answers. Successive governments of various stripes have talked about the goal of fulfilling lawful obligations while doing little to resolve the outstanding policy and process issues and, on their watch, seeing the backlog actually grow despite all the talk about reducing it.
I remember when they introduced some improvements and changes to the process after 1990. Minister Siddon, who was the minister of the day, indicated they felt it would only take 10 years to clear up all the specific claims. That was 16 years ago, and we are facing a backlog that is bigger than it was then. You can see it is sort of a cyclical kind of thing, with little progress.
On the last page of the presentation, we try to distil it down to five bullets:
First, more resources at all levels.
Second, address the continuing problem of staff turnover at Specific Claims Branch, the Department of Justice, and the Specific Claims Commission.
Third, address the matter of differential access to federal records, as well as inefficiencies related to counter research.
Fourth, implement an independent claims body consistent with the recommendations of the Joint Task Force report of 1998.
Fifth, ensure that policy frameworks keep pace with developments in case law.
With that, I would like to thank you for allowing us the opportunity to appear here this morning. So far as I am able, I will be glad to answer any questions you may have.
The Chairman: Before we go to questioners, I would like to reinforce what you said. This is not a partisan issue. This is an issue that has plagued our nation for several years. Administration after administration has failed to deal with this.
This is one of the reasons we decided to do this study at this time. As Senator Sibbeston pointed out, we believe we have a chance to achieve something now, because, for perhaps the first time in the history of the country, the Minister of Indian and Northern Development, Minister Prentice, brings a vast amount of experience to the ministry. We hope that he will be able to motivate the present administration, and future administrations, to deal with this in the way it should be dealt with.
Senator Peterson: My first question is in regard to the status of Bill C-6. Previous presenters have indicated that it is not acceptable to First Nations; there are flaws in it. Nevertheless, we seem to work around it.
In order to get a process and framework here, would a resolution of Bill C-6 help to get things going? Could it not incorporate this independent body to which you are referring, or would that take too much time?
Mr. Di Gangi: Are you suggesting that perhaps amendments to the bill might remedy some of the deficiencies, and that might be a way to move forward?
Senator Peterson: Yes. Just the name of it, the Specific Claims Resolution Act, would indicate to me that that is the framework for trying to resolve these issues. Should it not be amended or made workable?
Mr. Di Gangi: It is a good point that you mention. At the time, there was a lot of discussion on the First Nations side about what to do, because it was so drastically different from what was reflected in the joint task force report. There was discussion about whether or not it would be fair to suggest it be amended, or would it be better just to stick with the JTF report because the SCRA differed so much from it.
To be honest, today I am in two minds about it. There is some potential to amend the act to improve it, but it started off on such a wrong foot that on the other hand it may be better to return to the joint task force recommendations and try to work from there.
During the last set of hearings in 2003, a number of recommendations were made by a number of the parties with respect to very precise amendments that could be considered at that time. When the SCRA was being debated in Parliament, the opposition parties of the day also came up with a number of proposed amendments. In fairness, if there was a willingness to revisit the issue, probably the act and those amendments should be considered as well as the joint task force report to see the most appropriate way of proceeding in a cooperative manner.
Senator Peterson: My next question is on the lack of resources, which has been a common thread through all the presenters to date.
I presume now that the money is spread over all of the claims that are out there and you are trying to deal with a number of them at various stages. Would it be fair or practical to block off, say, five or 10 claims, and focus the majority of the resources on them until there is a result? That would then keep everyone focused on a workable number to try to move things along. Would that be doable?
Mr. Di Gangi: Yes. Certainly, in the work that we have been doing for our communities, we have tried to do that cooperatively with the Specific Claims Branch.
As an example, at the community level for Timiskaming they have 40 potential surrender claims. The review we have done is that each of the transactions could be suspect and needs to be audited. There are also issues with respect to surveys and boundaries. We sat down and tried to prioritize with the community; then we sat down with the Specific Claims Branch to say, ``Here is what we think is the most efficient way of proceeding: we prioritize so that attention is focused on moving certain ones ahead and getting them into the system and then going back later to address the other ones.''
At a more aggregate level, I certainly understand that over the last couple of years Specific Claims Branch has been going through a process of trying to prioritize and figure out what to do with all of the claims that they have in the system. That has included ranking them and prioritizing them and trying to focus on them. One of the things they put together was a surrender team. They got legal council and an analyst staff to focus on surrender issues and started to process a number of claims related to surrenders, because the Indian Act has certain provisions, whether or not they are met. It would enable them to streamline managing in that respect. That is another way in which they have tried to do something along the lines of what you suggested.
Senator Dyck: Thank you, Mr. Di Gangi. That was a most interesting presentation. I am most attracted to the comments you made about the research process. As a researcher myself, I recognize that the process of research is critical to this. You indicate that there is differential access as between the federal government researchers and First Nations researchers and that that is a major impediment.
What would your recommendation be in order to resolve that impediment? What needs to be done in order for First Nations researchers to have equal access to federal records?
Mr. Di Gangi: A number of things could be done. To step back a bit, when we talk about differential access, we are not talking about unfettered access to federal records, because privacy issues must be respected and there is also solicitor-client privilege. You do not expect to get current legal opinions drafted by the Department of Justice with respect to claims. We have to be realistic with what we expect to obtain. Setting those things aside, there are some things that could be done to facilitate better access without amending existing legislation.
For instance, we know in the case of third-party contractors hired by the department to do counter research that they simply need to receive a letter from the director's level within a department that goes to the archives, or to whoever has custody of the files, to instruct that they are to be treated as if they are federal employees for the purpose of access to records.That means that they do not have to go through the usual access to information requests and therefore do not have to wait six to 18 months to get access and can more clearly determine what is available. All that takes is a letter and it can be clearly laid out so that it does not give unfettered access and is targeted. That is one easy way to go about it.
Another way would be more on a case-by-case basis. It is difficult for the department to address that one, because controlling information is so much a part of what the department does.
Senator Dyck: Frankly, I am astounded that this could happen. It does undermine the ability of the First Nations to conduct research if they cannot get access to the information. In mainstream society, the written record is usually held up as being the truth, as it were, according to written records, although we are assuming that the records as such are accurate.
Could you make a comment with respect to the use of oral history by elders? In your opinion and in your experience how much weight is given to oral evidence versus this written record? Is most of the effort expended on looking at written records versus traditional knowledge, traditional meaning, oral history?
Mr. Di Gangi: That is a good question. The way I was trained was always to seek out and respect oral history. One of the problems we face in trying to collect oral history is that many of the elders have passed away and they are passing away quickly. Certainly, when we started our research project in 1996, the first thing we did was prepare to go out and interview the elders, because we knew that time was passing and we knew how long these things take. That was certainly a priority.
The further you go back in time, the more difficult it is because the elders have passed away. There we try to rely on material that may have been collected by anthropologists or others in the past. Frank Speck, a well-known anthropologist from the 1910s, was around the Temagami, Timiskaming and Maniwaki areain 1912 to 1915 and carried out a number of interviews. We were able to review his field notes and some of the transcripts of interviews that he carried out then. All of those are important aspects of the work.
Occasionally you will find oral history recounted in historical documents from the eighteenth and nineteenth centuries.At the same time, however, we have found that, because of the way the courts are and the system is, it is probably not prudent to rely 100 per cent on oral history alone. You need to be able to corroborate it, as the grand chief said in the previous session. You need to corroborate it and demonstrate that there is other evidence that also leads to the same conclusion.
Our first task, then, is to document the evidence of the elders and collect that material in a way in which the methodology is sound so that you can rely on it, especially once they have passed away. The second challenge is to find documentary evidence that corroborates it.
Senator Dyck: You made some comments with respect to policy frameworks keeping pace with case law. In terms of settling a claim, does this policy framework set up the criteria by which a specific claim is judged as being acceptable or not acceptable? How does the federal government decide? Do they have a standard process by which they decide that a claim has sufficient merit to proceed? Does anyone ever outline what those elements might be? Should that information be made available?
Mr. Di Gangi: It is interesting that you mention that. On the one hand you do have what the policy says, in that it lays out the criteria for a specific claim, such as unfulfilled treaty provisions and breeches of the Indian Act or other statutory requirements. Those criteria are clearly laid out in the policy.
My understanding is that when the brief containing the facts is sent to the Department of Justice, they do a risk assessment. Basically, it comes down to this: ``If we had to go to court,would we lose?'' If the risk assessment is such that there is likely a 90 per cent chance that they would lose if they went to court, then they will negotiate. The lower that ratio is, the more discussions there will be about whether they should bother to negotiate at all. If the Department of Justice lawyer's opinion is that thereis a 40 per cent chance of the Crown winning in court, then there is less incentive for them to validate the claim for negotiation.
One of the problems, which points to conflict of interest, is that a lawyer from the Department of Justice Canada is working for the defendant and making that call and recommendation to the minister. It is my understanding that it is not only the lawyers from Justice Canada that make that final decision, because at the end of the day it is a political call by the minister or deputy minister to accept or reject a claim. There is a committee process at INAC to review the validity of claims and make recommendations on what to do with them. A significant amount of influence is still retained by lawyers who are employed by the Crown to reflect on the risk of a claim succeeding against the Crown.
Senator Dyck: In other words, the claim is judged not necessarily only on the merit of the claim but also mainly on the fact that it might put the federal government at risk of losing a claim should it go to court. That is what I hear you saying.
Mr. Di Gangi: Yes, but the flip side is that, because there is a risk of the Crown losing, it has merit to be validated.
Senator Dyck: It is not specified what makes a good claim, but rather what makes a good case in terms of not losing if you went to court. It is looked at in a negative way rather than in a positive way.
Mr. Di Gangi: Yes. At the same time, in fairness, there must be some criteria established for what gets in the gate. There must be some basis for establishing a threshold and saying that the threshold needs to be met.
Senator Sibbeston: Mr. Di Gangi, thank you for the clear presentation and recommendations. There is nothing I can truly add. It points out to me that you are very rational. If this is the way in which First Nations deal with their claims, it is very legitimate and historically based. It is a kind of rational process. First Nations come to the federal government with real historical and legitimate claims and approach it in a logical and rational way. It is disheartening to see that their claims are delayed and that it takes so long to deal with them. It is also disheartening to know that our federal government has such difficulty in dealing with the claims of First Nations, even though the claims are legitimate and First Nations are patient and rational within the process. You represented that in your presentation to us this morning.
It makes me believe that the best effort to date has been the joint task force. Would you agree that, to date, the joint task force, comprised of First Nations and federal government representatives, represents the best approach to the specific claims process? There is no other way, apart from wiping the slate clean and having an independent body with all the resources necessary deal with the claims. Would you comment on that? I note that one of your recommendations is to implement an independent claims body consistent with the recommendations of the joint task force. Therein lies the solution and answer.
Mr. Di Gangi: I agree. I have been involved in this type of work for some time now. In fact, I started off working as a student researcher for the Union of Ontario Indians, when the grand chief was president in the 1970s. I looked at the various attempts at policy reform over the ensuing years, and the joint task force was the most credible attempt to try to develop a fair and equitable approach to identifying the issues and coming up with solutions. Perhaps that is why the government shied away from it at the end of the day.
I know from having been involved in that process that there were very sharp minds involved on the federal side. There was much back and forth debate. It is important to note that the information in the JTF report represents significant concessions and compromises by both the First Nations and the federal representatives involved. It was not like giving away the store to the Indians. Some hard bargaining and compromise went into preparing that report. That is why First Nations were very discouraged and disappointed when the government of the day walked away from it and came back with the Specific Claims Resolution Act, which was completely different and contrary to what had been agreed to by the joint task force.
In considering all that has come out over the past 30 years, I would certainly say that the joint task force report has been the best shot at a balanced approach. That work occurred at the same time as the royal commission was considering issues generally related to Aboriginal peoples. The considerations of the commission were taken into account as well.
The only other point I would make is that it is important not to reinvent the wheel if there is no need to do so. Considering all the hard work and compromise that went into that report at the time, it would be a shame to shelve it and proceed without it, because the effort was results-oriented and practical and was not arrogant or unrealizable in the real world.
Senator Sibbeston: I note that at the time this committee dealt with the Specific Claims Resolution Act, we recognized that it had limits and that it certainly did not embody all of the recommendations made by the joint task force. While this could be an incremental improvement over what was in existence, we sincerely hoped that, with the incremental changes, eventually all of the task force recommendations could be achieved or provided for. That was our thinking at the time.
In any situation, you do the best you can do. That is why I supported the SCRA. Slight amendments were made by the committee. For example, the cap was raised to $10 million. As well, there was federal assurance with respect to the appointment, et cetera. However, it was not proclaimed and is not law. We are back to where we were and no improvements have been made; we are at a stalemate. We do recognize that it is a serious problem and that if we do not do something about this, there will be more incidents like those at Oka and Caledonia.
The risk exists such that, if specific claims are not dealt with, there will be more eruptions. Are there any situations in the area where you work that could prompt such eruptions? Could more incidents occur that would result in bringing greater focus on the situation of Aboriginal people whereby Canada, in the end, would have no choice but to deal with these claims in a serious way?
Mr. Di Gangi: One of the realities that we face is that there are situations where you get friction arising as the result of unresolved grievances. I would certainly never be one to advocate violence or anything like that. At the same time, you have to acknowledge that there are situations that exist and, if they are not addressed, they can lead to these types of situations.
Speaking from our own experience, to step back a bit, there is a National Historic Site on Lake Timiskaming, which is the site of Fort Temiscamingue that dates from the French period. There is about 6,000 years of evidence of continuous Aboriginal occupation. It was a major trading location for the Algonquin people. You have trade goods from James Bay, from the East Coast and so on that have been found there.
In the 1700s, the French established a post at that site. The Hudson's Bay Company continued activities there and it was operating until about 1900. In any case, it is a very old site and there are burial grounds there. Some of them were marked.
Parks Canada was doing renovations and looking for the foundations of a Hudson's Bay Company barn back in 1998 and dug up an unmarked grave site. Contrary to their own regulations, they just moved the backhoe another 10 feet and kept digging. They dug up a second burial, and then they moved the backhoe again and dug up a third burial. When they finally realized these were Aboriginal remains, they approached the local chief and the elders in the community and were told: ``You have to stop all the operations until we determine the location of the burial site and the extent of it so we can take protective measures.''
The Parks Canada staff at the time had a different priority. They had contractors and deadlines, so they said, ``We have to finish this project.'' They ordered the work to proceed. There was a flurry of community meetings and the community had to make a decision to protect the remains. They shut the site down. They had to take those strong measures because they felt there was something at stake and there needed to be action to protect the physical remains.
Fortunately, that incident led to a revised view on the part of Parks Canada officials, and they began to work with the community to resolve the issues, to identify the extent of the burial site and take protective measures. Ultimately, it led to a cooperative agreement on management of that site.
That was about eight years ago. It started off as a conflict, but in the eight years since the result has been a more cooperative arrangement, a more business-like arrangement, in which the community has a say in the management and operation of the site. That is an example where you have conflict and you try to avoid it by dealing with it.
Another situation comes to mind. As I mentioned before, because of a variety of surrenders, the Timiskaming Reserve now is like a checkerboard with the neighbouring municipality. There are some lots that are regarded as municipal lots, where you have band members staying. Other lots are in dispute. There are opportunities there for friction. It gets very complicated because then you are involving the provincial government, plus the municipality, plus the First Nation government, plus the federal government. In those cases, we have tried to expedite the research related to those claims, to document them and try to get them addressed to avoid friction.
Here is another issue: Where there are potentials for friction, we try to prioritize and identify those so the facts can be determined and there is a rational basis to try to resolve them.
Senator Lovelace Nicholas: Do you have Crown land set aside for First Nations?
Mr. Di Gangi: Two of our communities have reserve lands set aside. One of them does not.
Senator Lovelace Nicholas: Do you think this should be part of the specific claims? Since the communities are growing and they do not have enough land, should there be land there set aside for First Nations? I would think that should be part of the Specific Claims process.
Mr. Di Gangi: We have tried to address that issue, certainly for the Wolf Lake community, through the Specific Claims process. There are Crown lands in the area available. There are also private lands. A problem for that community is that the federal government does not want to make the capital expenditure of building a new community and infrastructure and the ongoing programs and services. That is the real barrier for that particular community.
Senator Hubley: This committee has a unique opportunity. First, we have Minister Prentice, who understands the situation and is sympathetic to it. However, he is looking for some recommendations from this committee that will help to change the status quo. We also have a very strong chair and we have a great resource sitting around this table. I do not want to waste that. I am going to go over your recommendations and see where we can come up with something.
More resources at all levels are a great idea. We know that there is a figure, as Senator Campbell pointed out, that would resolve the backlog. However, if this committee says to government that we would like more money here and more money there, without having a plan that will be reasonably capable of resolving at least some of the situation, we will be accused of just throwing more money at it, and that is not the answer.
You mentioned the problem that you have with staff turnover, with 20 years to resolve a land claim. It is just a given there, is it not, that there will be problems with continuity and the history of cases?
As to the matter of accessing records, both written history and oral history, both sides have to work together on that. You cannot have a ``we'' and ``they'' situation on this and expect it to work. If the government has access to historical information, that must be shared. If First Nations cannot get that, then there is something wrong with the system.
I can go on, but one good thing I did hear was that the joint task force had possibilities. The important word there is ``joint.'' If we do not come to some conclusion in this committee that we can put together a process that will achieve a little bit of success, then we have lost the mark.
We have heard that First Nations should be involved. We heard that the Government of Canada should be involved. There should be archaeologists, an appeal process and joint research teams. There are models that work. We have models in Canada that govern. We have the Veterans Review and Appeal Board, which I am familiar with, and there are other models there. We have a group of people who listen to evidence and they make a decision on that evidence. If the parties do not like that, they can take it to court; and that certainly is a sobering thought for any tribunal. However, we cannot go on saying that this is wrong or that is wrong. We have to put our heads together and come up with a solution.
The one thing that is looming is this independent body, but I have yet to see what that body would look like; what authority would it have and what resources would it need.
Would you like to comment, now that I have vented all of that?
Mr. Di Gangi: I will try to keep my comments short. On the point of what it would look like and what it would cost, I would refer back to the joint task force report, because those were the considerations that were taken into account at the time. A lot of good minds on both sides put their heads together and came up with what is in there. I would point to that as a blueprint.
Just making one other point about the issue of staff turnover, you are right; over the course of 20 years, you have to expect there will be turnover. However, what I am talking about is every six months, every 12 months, every 18 months. Any time when you invest in human resources, you want to maintain those human resources.
The kinds of claims we are dealing with in Quebec are very old, very complicated. The federal government itself requires all kinds of evidence — mounds of it. Then when you have someone that you have walked through the material, has gone through all the documents and spent a year or two invested in getting to know the facts, it is a shame to see that human resource transferred elsewhere. It does have an impact.
I agree with you. Over the long term you cannot expect anything but having staff turnover, but it is much more compressed than that.
Senator Hubley: It is more serious than that.
Senator Watt: I heard you pointing out the fact that there is no sense in reinventing the wheel, because the work has already been carried out by the First Nations in the past in terms of what should be the solutions to the problems we are facing today.
Maybe this is an area that this committee should be focusing on first and foremost, taking a good look at the hard work that was carried out in the past and begin from there, and start to formulate recommendations if there need to be any.
One thing that is quite certain, and it goes with the facts of life, is that when you have too many rules and games, or policies in place, sometimes those can end up being used to block and slow down the process. That is what has been happening over the years.
I will give you one example of what I have gone through in my lifetime. We initiated a legal action in late 1972, got a ruling and went through the appeal court in 1973. Then the negotiation kicked in. The final agreement was reached by 1975.
In those years we had no policy. All that existed at that time was the need to accommodate the Aboriginal people. I am talking about Hydro Quebec and things of that nature.
If you are going to continue to deal only with the one government, the Government of Canada, we know they will be in a conflict-of-interest situation. Not having a provincial government involved, not having a third party involved, I do not think we will go anywhere, depending on who the parties are involved in the negotiations, on the mixture of negotiations, whether it is third party, federal government or provincial government, because the third party's interest exists, and the interest exists for the Aboriginal people to protect their interests.
That would be a reason for them to sit down at a table and negotiate. If the composition of the negotiators is not the right mixture, leaning more towards the political solution rather than the economic solution, you will have it one-sided. That is what has been happening over time.
You mentioned the fact that the working group has already worked a great deal in terms of trying to find the solution, and that is where we should begin. Is that what you are basically telling us here as a committee?
Mr. Di Gangi: I guess it depends on which of the objectives you are focusing on, because I did review the objectives when I came. Basically we are looking at this: Do you want to change the policy and recommend that the policy be changed? In that case the joint task force report would be an appropriate starting point. If there is the view, however, that there is not a possibility for a policy change and that you are focusing more on process and how to make the existing process and policy more fair and efficient, then you are looking at more incremental measures, I guess.
Our hope certainly is that the government will renew its commitment to review the policy to make it more equitable and fair. That would be our hope. I will leave it at that.
The Chairman: This is a wake-up call. There is no doubt that the question has been put to me, as chair of this committee: ``Why are you going through this process again? It has been gone through with the joint task force, RCAP and various studies have been done.'' We are trying to initiate the fact that the time has arrived for this to be dealt with. As Senator Sibbeston and Senator Campbell have pointed out, this is not a partisan thing. The minister has said it is a question of human rights; I look at Delgamuukw, which is the case that brought oral history to the fore, and, in the case of the Metis, I think of the Powley case. There seems to have to be a court action that triggers activity in Aboriginal files, but we really appreciate your presentation here today. I do not think that anything we are going to come up with has not been suggested.
We have just resolved some situations in Manitoba. Minister Prentice has, and the province had to be a player. In B.C., Premier Campbell has come to the fore and basically done a 180-degree turn on Aboriginal issues. I think Senator Campbell will agree on that; there has been marked improvement. The provinces must be involved, however, because of the fact that they hold onto the Crown land and often Crown land is part of the resolution of these differences.
The committee adjourned.