THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, February 15, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:45 p.m. [ET] to examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples.
Senator David Arnot (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, I would like to begin by acknowledging that the land on which we are gathered is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now the home of other First Nations, Métis and Inuit peoples from across Turtle Island.
I’m David Arnot, a senator from Saskatchewan and deputy chair of this committee. In the absence of the chair, Senator Francis, I will chair this meeting today.
Before we begin our meeting, I would like to ask everyone in the room to please refrain from leaning in too close to the microphone, or remove their earpiece when doing so. This will avoid any sound feedback that could negatively impact the committee staff in the room.
I will now ask the committee members in attendance to introduce themselves by stating their name and province or territory.
Senator Coyle: Mary Coyle from Nova Scotia.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 Territory, Alberta.
Senator Martin: Yonah Martin, British Columbia.
Senator Sorensen: Karen Sorensen, Alberta, Treaty 7.
Senator Tannas: Scott Tannas, Alberta.
Senator Boniface: Gwen Boniface, Ontario.
The Deputy Chair: Thank you.
Today we are continuing the series of briefings meant to inform and guide the future work of this committee. This meeting will consist of two panels broadly focused on treaties and Indigenous lands.
On the first panel, from the Office of the Treaty Commissioner of Saskatchewan, we’ll hear from Mary Culbertson, Treaty Commissioner for Saskatchewan. Thank you for joining us tonight, commissioner.
Mary Culbertson, Treaty Commissioner, Office of the Treaty Commissioner of Saskatchewan: Meegwetch. Thank you for having me.
The Deputy Chair: We’ll have opening remarks for about five minutes, Commissioner Culbertson, and then there will be a question-and-answer period of approximately five minutes per senator. Due to the constraints of time, I ask everyone to please keep the exchanges brief. I’ll now invite Treaty Commissioner Culbertson to begin her opening remarks.
Ms. Culbertson: Aanii, boozhoo, honourable Senate of Canada. Thank you to Senator Arnot for the introduction. Thank you for the invitation to present on priorities of the Office of the Treaty Commissioner. I would ask for your patience as I present this evening as I have recently come down with COVID.
One of the priorities of the Office of the Treaty Commissioner, moving into this year, is that we have been working with the FSIN and Crown-Indigenous relations negotiations Canada on a renewal of the mandate for the Office of the Treaty Commissioner. It’s been approximately 35 years that this office has existed, and I believe it was the first modern-day treaty commission office that opened in Canada. Since then, we have the Treaty Relations Commission of Manitoba and the B.C. Treaty Commission. We are one of two numbered treaty commissions in the nation, and our mandates are similar. However, they are not the same.
One of the priorities that we have, of course, is always education: education of the general public, in classrooms, of organizations, of government officials and especially newcomers coming to Canada. We have an evolving mandate need. The needs of the treaty territories are changing when it comes to climate change and ensuring that the voices are being heard of First Nations. We’ve seen this need in education increase to not just treaties, pre-treaty, post-treaty and educating about systemic issues that have come across through colonization — but especially about residential schools now.
Saskatchewan has the largest population of residential school survivors and the highest numbers of residential schools believed to be operating at one point. We have only one residential school left standing, in Muscowequan. Since the discovery of the Kamloops 215, there have been subsequent discoveries here, most recently at Lebret, which was called White Calf, of a child’s jawbone. Figuring out how we were going to present this information to different age levels and classrooms, that’s the work of our treaty education director and our Elders Advisory Council as well.
Since 2007, Saskatchewan was the first province to make mandatory treaty education in the classroom. It was initially resourced through partnership and creation with the provincial government. Since then, that relationship has been evolving and devolving and struggles to continue. However, that education is still mandated. We intend to add to the treaty resource curriculum about residential schools and about the graves, according to age and division level of education. We’re having age-appropriate education.
We have an archive and research centre. It was officially opened in 2020 and has assisted communities, individuals and organizations accessing data information and most recently assisting in the collection and findings of residential school records held by Catholic Church entities. This has proven a challenge, and we very much welcome the creation of the special interlocutor on unmarked graves and missing children. We will support the work she’s doing to devise a legal framework and help in whatever way we can.
With providing these services and this information comes the responsibility of protecting that information through our archives. That is the oral history that was created for over 30 years here. We created an Elders Advisory Council this year on access to that information, and we have begun creating Indigenous laws on accessing that information. I’m very proud of that work that has begun with the Elders Advisory Council and knowledge keepers, and they have accepted the responsibility to take on this challenge. We’re hoping this will, of course, lead to other initiatives in the province and territories on creation of access to information laws and protection of data that’s being created and found as we speak.
One of the other priorities we’re working on is an UNDRIP legislation action plan and education. We’ve worked with the FSIN Treaty Governance Office on engagement of First Nations, particularly focused on women in leadership — not just the elected women in leadership but the community-level leadership, so those ladies in the community who are always there at the hockey rink, who are at the community hall, who come to things at the school, that kind of community leadership, and changing our ways of how we’re looking at leaders in our communities as not just being elected. We were pretty successful in engaging from one end of the province to the other. The loudest requests we heard were about education on how the legislation on UNDRIP relates to treaties and how it affects the land and access to resources. Currently, we have failing duty to consult policies at the federal and provincial levels. Our governments do not talk consistently with one another. Those two legislation pieces are not consistent. We have a huge disparity in equity to information when it comes to lands.
I have been watching and monitoring, as a Treaty Commissioner, to provide in my reporting on the various acts and implementation of Calls to Justice, Calls to Action and especially UNDRIP legislation. We see with the coming creation of an Indigenous rights ombudsman that one of the loudest voices or consistent Calls for Action from the UNDRIP education we’ve done out there is they wanted an Indigenous rights ombudsman. Seeing this was going to be created, and it’s announced now, is great. I can use as simple a word as that. We are excited to see the work that can come out of there because we do not have that voice right now. We have political organizations by region and nationally; however, that voice is not catching the people on the ground who are having their rights violated or who don’t know what their basic rights are when it comes to treaty rights, human rights or Indigenous rights. We will be undertaking a huge education campaign on UNDRIP and how it relates to treaties in this province in the coming year, working with the Treaty Governance Office.
One of the inequities we see is always about access to land. Of course, in this province, as you may well know, we have various legislation which has been passed. One them is the trespassing act. The province says it does not interfere with treaty rights, but other rights holders beg to differ. We have the declaration now in the Saskatchewan First Act that resources are owned by the province and belong to everyone. The First Nations in the province here have made it clear that is not what they believe and that was not what they agreed to when they entered into a treaty.
On the national council on truth and reconciliation, we don’t have a lot of information about that, and that lack of consistent communication coming from all levels is a barrier there. I think that the national council for truth and reconciliation should be made up equitably of women, men, and, of course, representation from the regions or treaty territories. I’m hoping that this will be a central body for measurement and evaluation of reconciliation. Right now, there are different measurement and evaluation pieces here and there, but nobody knows collectively what’s all out there.
For example, at the Office of the Treaty Commissioner, we have been creating, for the last six years, truth and reconciliation through treaty implementation. It is a measurement and evaluation framework with indicators and outcomes using the MMWIG2S Calls to Justice, the Calls to Action, UNDRIP and UN Sustainable Development Goals. Putting those into indicators with outcomes forms this framework that we have created called the model for growth; it is growing our society so we have more equitable systems.
We’re looking forward to the creation of this national council for truth and reconciliation, and I hope that it is quickly developed. They’ve been talking about it for a long time, but this really needs to happen, as well as that Indigenous rights ombudsperson under that. I feel it can level the playing field if we have an ombudsman who can do that advocating and reporting at the UN level and nationally to ensure that Canadian laws would be consistent with the rights of Indigenous people through treaty rights and UN declaration rights, including the Canadian Charter of Rights and Freedoms.
When it comes to equity and information for lands, as I said before, governments do not communicate well. It is weak and inconsistent. There’s little to no knowledge transfer at the community level and leadership level. We see this as being an important role in the UNDRIP framework implementation conversation so we can ensure that the principles of negotiated treaties and constitutionally protected rights and the goals of reconciliation are moving forward and will be one day met. We hope to be able to be an assistant with those Indigenous voices that are being heard.
I will end my submission there. Thank you for being patient with me. I’m sorry that I’m a bit under the weather, but I’m very honoured to be able to present today.
The Deputy Chair: Thank you very much, Treaty Commissioner Culbertson.
Before we go to questions, it behooves me to remind everyone here that we would ask you to refrain from leaning in too close to the microphone, or remove your earpiece when doing so.
We have a number of questions for you, Ms. Culbertson.
Senator Sorensen: Good evening. I’m sorry about your COVID. We’ve probably almost all been there. I hope you’re feeling better soon.
Thank you for all the work that you’re doing. I heard you talking predominantly about education and the women in leadership piece. I want to ask about something that I think was done through your organization. A few years ago, your office collaborated to develop a common vision for truth and reconciliation with input from thousands of Indigenous and non-Indigenous residents of Saskatchewan, which I think is a really interesting project. Could you tell us a bit more about that process and how you accomplished that and maybe some of the outcomes over the last few years?
Ms. Culbertson: The vision was created through meeting with different survivor circles at the time and community groups. In Saskatchewan, in the last six to eight years, we have assisted in creating over 10 reconciliation conversations throughout the province: in Lloydminster, Prince Albert, Saskatoon, Regina, North Battleford, Yorkton, Swift Current and Nipawin. It was through discussions with people from those areas, sharing the information and taking back any criticisms that were made.
We also had specific knowledge keepers that we sought out over the course of a couple of years, such as Willie Ermine and his teachings and knowledge on ethical spaces and ensuring we were doing things in an ethically important manner, such as the protocols that have to happen when you’re talking to elders and knowledge keepers.
It wasn’t a very set-out process. It was an internal process where we know what has to happen, but we never put on paper how we did it. Now that you bring that up, it’s probably really good to describe it so that others know how we got there. It wasn’t overnight. It definitely took a few years.
Senator Coyle: Thank you so much, Treaty Commissioner Culbertson. You’re doing remarkably well for somebody with COVID. I couldn’t have done what you’re doing tonight.
Thank you so much also for the work that you’re involved in. It’s so wide-ranging and so important. You’ve already given us some terrific input for when we start to seriously delve into that national council for reconciliation, which is with us in the Senate. We will be looking into that soon, so thank you for your input there.
I’m curious about many things, but I’ll just ask questions on two. First, I’m very curious about the work you’ve described and working with non-elected community leadership. That is, community leaders who are, by virtue of their actions and commitments, leaders. I’d like to hear a bit more about that, if you have a chance to explain that a bit more.
My second question is regarding traditional legal knowledge and whether traditional legal knowledge is something that is part of the work of your commission.
Ms. Culbertson: Thank you, senator.
I’ll begin by answering the question about community leadership. I believe the term we use is champions of change. When we talk about leadership from an Indigenous perspective, we know that not all elected leaders are going to be there for 20 years or for 30 years, but the people in the community, the change makers, the doers, they’re the ones who are always there. That’s who we have in our reconciliation circles. It’s those people who are the ones that are always wanting to participate, it seems. There are others whom you have to kind of prod to bring into the circle, or people who need to find what’s good for their journey in reconciliation to come to the table.
When we put calls out to communities — and, for example, I’ll use Saulteaux First Nation — we did an engagement conversation about UNDRIP legislation this past fall in North Battleford. We focused on Battlefords Agency Tribal Council area and the surrounding First Nations. They put a call out to their elected councillors and the health directors — that is, the people who are working in the tribal council, the ladies working in the community. Those who could make it maybe worked in health. One lady was a bus driver. Another one said, “I’m really glad I came today. I was thinking, what I should do on my day off? I got this notice, so here I am.”
From there, some of the participants from Saulteaux First Nation asked us to come out and have one specifically in their community. When you have those changemakers coming and getting involved, they bring that back to their nation. They invite us in, and pretty soon we’re there. We had more than just women leadership and women community members. We had youth, young men and kids from the school there and involved other levels of community members, like the people who are on the ground working.
I’m First Nations. I’m from Keeseekoose First Nation in Treaty 4. I’m Anishinaabe, Irish and Scottish and whatever else goes on with my dad’s side there. We were raised with my mom’s family, the Musqua family, Bear Clan. To me, the word “leadership” just means different things on how we were brought up. Leadership was any person who can bring people together, any voice that can bring people together, the person who’s the fire keeper in the community.
I think I answered the first part of the question. The second part was on Indigenous knowledge.
Senator Coyle: Yes, on Indigenous legal knowledge.
Ms. Culbertson: In our mandate, it is very expansive. The last mandate of the treaty commission was from 2008. We’re working on that mandate to modernize, as Minister Miller put it. The chiefs, with the treaty governance office and our elders’ council, will be working together on how that mandate is shaped. We’re hoping to have it done within this year.
Indigenous legal knowledge with our mandate is expansive and broad. The days of the exploratory discussions and the common table that then Commissioner Arnot, now Senator Arnot, started when he was commissioner are part of that oral history and the beginnings of those conversations that have taken us to where we are today, unknowingly creating an Indigenous legal framework for access to information within our archives.
Through our treaty table mechanism with CIRNAC, we have proposed Indigenous land legislation. In our province, for example, we have the FSIN, the Federation of Sovereign Indian Nations, which is the Indigenous provincial-territorial representative organization; we have tribal council levels that are service providers; and we have independent nations that are not affiliated to tribal councils but part of the FSIN. Not one program or legislation or method will work when you have such a diverse population.
We have language groups that are very diverse in dialects. We have Anishinaabe, Nakoda, Dakota, Lakota, Swampy Cree, the Woodland Cree, Plains Cree, the Dene Thà — we have so many languages that not one size fits all. We can’t have a pan-Indigenous type of legislation when it comes to traditional territories. That is a barrier in itself because we cannot just paint everyone with the same brush, so to speak, on legislation and how we’re serving them. I see that as being a barrier to equity, especially when we are developing laws because not all those laws will be same.
As an example of an Indigenous legal system, I always like to use the example of “because my mom said so.” In a ribbon skirt debate many years ago, someone said that women shouldn’t be wearing ribbon skirts, and there was one of those Facebook-type debates, and someone texted me and asked, “Why do you wear a skirt to ceremonies? Why do you do that?” And my reply was, “Because my mom said so. Because my kookum said so.” That was our law. That was our family law. We don’t realize that those are small things around how we live our lives every day. Those are our laws.
I’d say more, but I think those are tobacco-type questions that we would have to sit and have a conversation about, but like I said, we cannot paint everyone with a pan-Indigenous approach when it comes to making Indigenous laws. It would be separate and unique to each area. I only really realized that we were creating our own Indigenous access to information law just a couple of weeks ago. We have so much oral history that had been recorded and taped, and we’re now making it digitized, but yet we have Indigenous legal knowledge where someone may not want their great-grandmother’s oral history shared. How do we accommodate that? How do we answer to that without taking the very hard line of no, they were paid an honorarium, they were given tobacco, too bad, we own it? That’s not the space that we need to come from, and it’s definitely not something we should be saying from federal government commissions in this era of reconciliation, especially when it comes to oral histories.
I hope that answered a bit of the question.
Senator LaBoucane-Benson: Commissioner, thank you so much for sharing today.
I am particularly interested in the new Saskatchewan trespassing law. You mentioned there are nations that feel like it contravenes treaty rights. It also looks like there is a group of land holders that are, I think, called the Treaty Land Sharing Network of farmers and landowners who want to create a safe space for Indigenous people to do their Indigenous practices on the land. What is the treaty commission’s position on this, and how are you working in this reconciliation space? This group on sharing is actually innovative. That’s the first time I’ve seen that there are landowners in this network who want to share land, and yet there is this regressive law that was passed. How are you moving in this space?
Ms. Culbertson: Thank you so much for that. I’m really glad you brought that up.
The Treaty Land Sharing Network was born from the murder of Colten Boushie. After Colten was murdered and before the verdict was even done in the Gerald Stanley trial, there had been trespassing legislation tabled at, I believe, the Saskatchewan Association of Rural Municipalities conference. Then it moved forward to the provincial government. With that trespassing legislation, at the same time, after the murder of Colten Boushie, the Treaty Land Sharing Network started. It was started by a group of landowners or land titleholders, as they like to call themselves — farmers, ranchers. Ian McCreary, Mary Smillie and Elizabeth Sink are just a few of the names that have joined together.
The Treaty Land Sharing Network is supported by the Office of the Treaty Commissioner. We work very well together. We collaborate through our speaker’s bureau and also through being a host agency and funding agency. When I first heard of the Treaty Land Sharing Network, I was a bit skeptical. I thought, wow, is this really happening? With all the things we were going through in this province at the time, we were still very much reeling from that. But we have increased our presence in rural Saskatchewan through reconciliation conversations and through the Treaty Land Sharing Network.
They provide signs for other treaty land holders to put on their property that say it’s a safe space to gather medicines or to pick medicines. To take a walk or to pull over on the side of the road when you’re travelling in Saskatchewan on a grid to relieve yourself is common in rural areas. At that time, people didn’t feel safe. The Treaty Land Sharing Network was something that happened when it needed to, and we’re very proud of the work they do and we’ll continue to support them.
In navigating the political landscape of having a very drastic trespassing act as opposed to the Treaty Land Sharing Network, we do navigate it carefully. I choose my words wisely, but I also tell the truth. We are to be a neutral federal government commission operating in Saskatchewan. However, it’s hard to have the neutrality when there is inequity to begin with. We have a completely inequitable relationship, as we all know, through systemic discrimination, colonization and the systems that exist, yet we’re expected to be neutral. I believe that I have to make sure that the truth is there, that we have to support initiatives like this, and one day, maybe we will have equity be equity so we can have neutrality.
Treaty Land Sharing Network will host feasts at their farms, they will have education sessions, and they have people coming out doing exploration. There might be petroglyphs, tipi rings, medicine wheels, on farmland or artifacts. They are very brave people for wanting to the stand in the face of hatred, racism and misunderstanding at times. They are very brave to do what they have done, and that was the intention of the treaty relationship our ancestors entered into.
Senator Boniface: Welcome to you, commissioner. I could listen to you all day on these issues.
I wanted to come back to a reference you made on the reconciliation circles. I’m from Ontario, and I’m doing some work with our local community and our First Nation community, which is side-by-side. We have been very fortunate in the engagement of both communities, but one of the challenges we’ve had is with engaging youth. Can you tell me how your reconciliation circles have gone about including youth and how that has developed for you?
Ms. Culbertson: One of the aspects that we undertook to involve youth was applying to ESDC for a Youth in Service program, and it was Youth in Service to reconciliation in Saskatchewan. I believe we began that in 2019. COVID has also frozen time for me. I don’t know what year it is. We put out a call to youth across Saskatchewan for those who wanted to be ambassadors for treaty and reconciliation. They submitted essays. We had essays from youth, First Nations, non-First Nations and newcomers. From there, we had approximately 30 to 38 youth from across the treaty territories. It was a great experience. Of course, when you’re working with youth, you have barriers. I had great staff, a great youth coordinator, and it was educating them, empowering them. Many came very well educated to begin with, and it was sharing experiences.
We did a youth cultural exchange with Fond du Lac and with our Youth in Service and some elders from my home area on Treaty 4. We flew up to Fond du Lac and had our youth meet with the youth group there locally, and they shared stories and made a video documentary. We debriefed when we came home. We took two newcomer youth with us. One was from Nigeria and the other from India.
They were such great kids. They were all champions, and those were all future young leaders. Of course, you don’t want to take just the most gregarious and confident youth. You want all levels. So we had the shy quiet ones that bonded and made friends. Some of them stayed on as summer students or kept applying for a mentorship program. One of them is now our digitization technician, and he digitizes the archives and assists with the Elders Council coordination. We have youth on our speakers bureau. We ensured we had those voices there.
One of the barriers to involving youth is having meetings during school hours. The youth are in school, they’re away, so you have to make sure that you’re doing it while they can participate and have activities when they can, inviting them, creating spaces for them.
Our youth today are so much more articulate. They are being taught things because of the work we have done in our generations and your generations and before us about systems and about inequity. They are being taught things we didn’t talk about before. We didn’t talk about treaties. We didn’t talk about the Metis resistance as being a resistance. Those things were taught very differently to us. It makes it exciting for them somehow. They know what they want. We can’t be the adults coming and telling the youth, “This is what you do to reconcile.” They’ll know what they want. It is just engaging them.
On another level, in my home area, I can’t start a reconciliation circle for the life of me there, but we’re getting there. And I said maybe it will take, when I’m done this role, for me to go and do it myself. They definitely open doors, create conversations and build allies, and it builds a better sense of community wherever we have been part of these conversations.
Senator Martin: Thank you, commissioner, for your presentation this evening.
We heard from the B.C. treaty commissioner and the Manitoba commissioner, and it’s interesting to hear from each of you — all women — and your emphasis on education. I was curious about any sort of sharing that you might do with these other commissioners and commissions in regard to your work and best practices and whether a national treaty commission would be useful. How would a national commission support the work that you’re doing?
Ms. Culbertson: Thank you, and I’m very glad that you asked that question, because it’s in the back of my mind to work on that national treaty commission piece, or international.
With the other commissions, we have built relations. We’re not mandated in our mandates, any of us, to even communicate even or to work together. But we do.
I have visited the BC Treaty Commission, and their role is very different. They’re in active treaty negotiations. They’re keepers of the treaty process there. It’s very different. We include education about modern-day treaties, such as the ones the BC Treaty Commission undertakes, in our resources, our presentations and our education.
We work with the TRCM, Treaty Relations Commission of Manitoba, much more closely because they are geographically closer. I was supposed to be having supper tonight with the Manitoba treaty commissioner in Thompson, Manitoba, of all places. Right now, Treaty 5 summit is going on in Thompson, Manitoba, and we both attend same events, such as the Treaty 10 gatherings and Treaty 5. We collaborate on initiatives that overlap at times. We call ourselves “sister commissioners.” Our mandates are different. The Manitoba treaty commission has expressed, “I’d like a mandate like yours to have a treaty table,” and then sometimes when I would do treaty tables chairing meetings — and Senator Arnot can relate — I jokingly tell her, “You don’t want a treaty table.”
This leads into the national commissioner question. The treaty table began with the exploratory table discussions from Senator Arnot’s days, and he laid the foundation for the work we do here. But I would say the evolution of rights organizations and the creation of RISD tables has, in my opinion and from what I have seen, made the treaty table somewhat redundant. The way in which the treaty table actually worked didn’t work. In the mandate, it says that representatives or officials representing the minister of CIRNAC would come to the table along with officials or representatives from FSIN. Of course, at times that will be chiefs, so you just have bureaucratic officials sitting there meeting with chiefs. Decision makers weren’t coming to the table, whether it was on health, education, justice issues, duty to consult issues or lands. It wasn’t working, so we’ve put a pause on that until a new mandate is devised, because if you are wasting resources and time, there is a better way to spend it.
When it comes to the national treaty commission conversation, I was very inspired to hear this was going to be created. I remember that when they were doing the announcements and making it part of a campaign platform about that commission, there was, of course, disagreement on whether it should be called “national treaty commission,” or “international treaty commission.” I said, “I don’t care what it’s called. You could call it the blue treaty commission.” I believe that the creation of a commission that could unite the current commissions and provide a level playing field in all the regions and territories could change people’s lives when it comes to treaty implementation on reserves. It could change people’s lives because you would have a uniting of those voices.
I will use my own First Nation as an example. Keeseekoose cannot negotiate treaty implementation at education or health all by itself. The FSIN cannot negotiate treaty implementation. One First Nation cannot do something that affects the others when it comes to the collective treaty rights, yet that’s what we see being attempted. When the treaties were entered into, some of the first commissioners said, “These treaties will be from the Red River to the foot of the Rocky Mountains and will last for as long as the sun shines, the grass grows and the rivers flow. I cannot promise your brother more than I am giving you.” That was from the treaty commissioner’s lieutenant governors’ mouths. Yet, we cannot have one nation negotiating treaty. We cannot have one organization negotiating treaty. I believe that equity could have been created by a national or international body such as a treaty commission.
Last December, when I would ask for dates from Canada on the treaty commission discussions that were being held, there was actually another resolution that went to AFN, and it was the wrong timing. That resolution was defeated. However, I’ve given the advice here to our FSIN that we need to start that international treaty conversation again, whatever they want to call it. The coming UNDRIP implementation legislation and the creation of an Indigenous ombudsperson on rights could encompass both those things, or be within it, alongside it or part of it, because it would do the monitoring and the reporting. It could be that collective, unified voice when it comes to treaties 1 to 7, 1 to 11, the Robinson-Huron Treaty and so forth. It would also go to creating a national treaty education curriculum that would be uniform and educate about all the different types of treaties in Canada.
The Deputy Chair: Commissioner, the chair, Brian Francis, when he’s here, always asks a question at the end. I’ll just make this preface that I think you worked really hard in Saskatchewan to create relationships in non-Indigenous communities and with the Indigenous community. You have a network of relationships. You probably have some good ideas for this committee in terms of some of the future studies we might do. You’re uniquely placed to help us with that because of the relationships you have. I’m going to close by asking you to think about that question and perhaps give us some advice in writing about some issues you think we should be exploring, from your perspective.
Thank you. The time for the discussion is complete. Thank you very much for coming today and sharing your thoughts with us. Your enthusiasm is infectious. That’s always a good thing.
For our second panel, we have the Specific Claims Tribunal. We’ll be hearing from Justice Victoria Chiappetta, the chair. It’s so nice to have you here this evening. Ms. Chiappetta, we’ll have five minutes for opening remarks from you, and that will be followed by a question-and-answer session from the senators who are here. Due to time constraints, it behooves me to ask everybody here to keep exchanges brief. We look forward to the discussion. I will now invite Ms. Chiappetta to give her opening.
Victoria Chiappetta, Chair, Specific Claims Tribunal: Thank you. Good evening to all honourable senators sitting before me. It is a pleasure to be with all of you this evening.
I have to tell you that you work much later than any of the judges I know. If anyone ever questions that, you can cite me. I’ll make you an order, for sure.
I wanted to start by telling you about my background. My legal background includes corporate law and civil litigation. I’ve done environmental law and labour law and focused a bit on human rights. I was appointed to the Superior Court of Ontario, sitting in Toronto, in November 2012. I have also served as a deputy judge in the Nunavut Court of Justice since December 2017. I became a full-time member of the Specific Claims Tribunal in June 2019, and then in December 2020, I had the great privilege of being appointed chairperson. That’s enough about me.
Let’s talk a bit about the tribunal. It is the result of a historic joint initiative between the federal government and the Assembly of First Nations. The Specific Claims Tribunal Act received Royal Assent in June 2008 and came into force on October 16 of that same year. It was meant to, and does modify, the previous approaches to claims settlement by establishing our independent tribunal composed of Superior Court judges and having the authority to render binding decisions in respect of both the merits of the claim and compensation up to $150 million for each claim. It’s now been just over 11 years since the tribunal became fully operational. The first hearing concluded on May 31, 2012, and the first decision released on July 4, 2012.
Unlike claims based on Aboriginal rights and title, specific claims concern alleged breaches of the Crown’s legal obligations relating to historical treaties, reserve lands and resources or the trust funds of First Nations. Under the Specific Claims Tribunal Act, the Governor-in-Council establishes a roster of six Superior Court judges to act as members of the tribunal and then appoints the chairperson from that roster. The tribunal must comprise no more than six full-time members or an equivalent number of part-time members provided that their combined time devoted to their functions and duties is no more than the combined time that would be devoted to six full-time members.
One of the most significant parts of our tribunal is its independence, bearing in mind that the tribunal is the first national mechanism designed so that First Nations are able to feel that they are on a level playing field with the Crown.
As you may have heard, a number of claims get settled after they come to the tribunal. Instead of moving forward to an adjudication by one of our members, they’re settled after coming to the tribunal. There’s good reason for that. At the tribunal, we provide a forum for litigation, but we also provide a forum for negotiation. We feel that settling these claims through negotiation and consensus is a mechanism for reconciliation and serves the parties and the efforts in a much more significant way. We encourage settlements at the tribunal. An objective of our act is to “ . . . create conditions that are appropriate for resolving valid claims through negotiations.” We advance the preferred route for the settlement of claims during negotiations. As the claim proceeds throughout the hearing and expert evidence is developed and members are able to have meaningful case management conferences with the members, we can steer the claim toward consensus in a way that has been helpful for the parties to achieve consensus by negotiation. If that doesn’t work, we can also provide small areas for them to agree on such procedural matters if we are going to head towards a hearing so we can take out the adversarial nature of a court hearing and build in more of a consensus, working together, to achieve the resolution.
In my view and in my experience, the Specific Claims Tribunal has proven to be an effective mechanism and an important part of the reconciliation efforts. We’ve accelerated the resolution of specific claims. Where they were taking decades before, they’re now taking years at the tribunal. We would all prefer to be even more timely in the resolution of these important claims, particularly as most of them have been outstanding for far too many years. We are committed to addressing the delay in the process. We are considering the current rules of practice that have been in place since 2010 to see if we can revisit them and assist the tribunal in better fulfilling its mandate to provide the timely resolution of these claims in an efficient, cost-saving way. However, the need for possible improvements should not overshadow how much the tribunal has accomplished over the years since it became operational in 2008.
I’m so pleased to be here, and I’m open to answering any and all questions that you might have.
The Deputy Chair: Again, it behooves me to mention that when you’re speaking into the microphone, please be cognizant of speaking clearly into the microphone, and remove your headpiece so there isn’t any feedback that could cause trouble for the staff.
Thank you very much for your opening statement. It was very interesting. We will now have questions.
Senator Tannas: Thank you for being here. I have two questions.
First, on your $150 million limit, do you have any discretion to split specific claims in a way that would allow you to make a series of judgments at $150 million, or is it an aggregate that you just can’t work your way around?
Second, anecdotally, I have seen in the last few years a number of claims in Alberta that were nowhere and that have kind of come out of the blue. I haven’t followed them closely enough to know whether or not you and your folks had any involvement in the settlement. Are there any fairly recent Alberta claims that you could point to that have successfully come in and out of your system?
Ms. Chiappetta: Let’s start with the $150 million cap. As you know, our tribunal is a creature of statute, so it is in the Specific Claims Tribunal Act that compensation cannot exceed $150 million. That is an aggregate. It includes interest. That was put in place in 2008.
In terms of Alberta cases, we have a number of Alberta cases, and there have been a number of settlements from our tribunal. I can’t think of one that comes to mind particularly at the moment, but we’ve had a lot of cases that come from out West and a lot of them in Alberta as well. I just can’t think of one that’s been settled.
Senator Tannas: In Senator Sorensen’s beautiful Banff National Park, there was traditional land where there was compensation, Castle Mountain. I can’t remember which nation it was. The other one that was recent, which seemed to come out of nowhere as well, was the one with the Blood Tribe where it was around some land that was taken from them for cattle ranching and they had to replace it. Was the tribunal involved with either one of those?
Ms. Chiappetta: I can’t recall. I don’t believe so.
Senator Tannas: Do you keep track of how many claims have come in and out successfully?
Ms. Chiappetta: Right now, we have 89 claims in our system. We’ve had 143 since its inception, and 54 of those claims have been resolved.
Senator Coyle: Thank you so much for being with us. The work you’re doing is fascinating. It’s good to hear that the creation of the tribunal has been an accelerator, even if there’s still some slowness in the system that you would like to see improved upon.
I may only be able to ask my first question, because I know we’re supposed to be brief. You spoke largely about the negotiation/consensus channel, but you said that litigation is still something that you deal with as well. Could you tell us, of all the cases you’re dealing with, which eventually go to litigation and how many go the negotiation/consensus route, and why?
Ms. Chiappetta: There are a lot of reasons why cases can go the negotiation route, and a lot of it has to do with the timing. One of the wonderful things we do at the tribunal is that we create a body of jurisprudence that lets the parties rely on that jurisprudence to achieve consensus. One of the cases that comes to mind is a case called Beardy’s, which had to do with treaty annuities. Before, Canada was not even negotiating any of these claims, but because of our decision, these claims are now being settled. Sometimes claims come to the tribunal full of conflict, but that conflict gets resolved because of the jurisprudence that comes after the claims come to the tribunal.
In terms of the numbers, right now, as I said, we have 89 outstanding claims, and 39 of those are in negotiation — again, for a number of reasons. Sometimes what happens at the tribunal as well is that the case is bifurcated between whether the claim is validated and whether the claim is appropriate for compensation and, if so, how much. If the tribunal rules on whether the claim is valid and finds the claim valid, the parties can start to negotiate compensation. That has happened a lot. If you look at our numbers, we have made 29 decisions on whether or not the claim is valid and only 8 on how much compensation should be paid. So it’s that initial validation.
Sometimes claims come to us and they just have a small legal issue that needs to be addressed before they can start to negotiate. Sometimes it’s about the jurisdiction or whether or not the issue has been resolved in courts in a different matter. That we can steer towards negotiation. Ultimately, if we haven’t had success in steering towards negotiation for a couple of years, even before we go to the hearing and we have all the expert evidence, it behooves us to take a look at all that evidence and maybe provide some guidance as to where case might go. That starts the parties talking as well.
It always has to be front of mind. I think that we do our parties the best service if we can find a way for them to agree as opposed to often in adjudication it’s seen as a winner and a loser. That might be okay in other legal matters, but in this area of law, it’s the antithesis of what we’re trying to do.
Senator Coyle: So that’s your modus operandi.
Ms. Chiappetta: Correct.
Senator Sorensen: I will just make a quick comment because Senator Tannas asked my question. You have three Alberta senators in the room. I too was going to get egocentric and ask about Alberta.
I just want to say how pleased I am that you’re here. I’m very new to this committee. I knew nothing about how claims were dealt with, and I’ve found your comments and the fact that you exist very interesting. I’ll be doing some research on my own. Thank you for being here.
Ms. Chiappetta: I think that’s a lot of Canadians, frankly.
Senator Sorensen: Sort of like the Senate. Nobody knows what we do.
Ms. Chiappetta: When I was appointed to the tribunal in Toronto, there were 90 judges, 90 of my colleagues sitting in Toronto, and I think maybe 3 of them knew what the tribunal was.
I think it does wonderful work. We prefer to just be doing that work in the background. We don’t need the attention or the glory. We just want to get the work done in the way it needs to get done.
I just returned from Banff.
Senator Sorensen: Oh, did you?
Ms. Chiappetta: I went up the Banff Gondola. I digress.
Senator Sorensen: Did you see the Nightrise?
Ms. Chiappetta: I did see the Nightrise. It was absolutely —
Senator Sorensen: It’s an Indigenous tourism experience.
Ms. Chiappetta: Correct. I took my son. It was lovely.
Senator Boniface: Thank you for being here and for the work that you’re doing.
In terms of the actual process, because you’re trying to step out of the adversarial, who do you consider parties to the claim? Is it strictly the federal government and the Indigenous community or a treaty organization or whatever? Who are the parties?
Ms. Chiappetta: Since we are a tribunal, we have to set it up with the title of proceeding. In the title of proceeding, there has to be a claimant and there has to be a respondent. It is the Indigenous group and the Government of Canada. That doesn’t start us off on the right foot. As soon as you have parties, then you have parties’ positions and parties’ experts, and then you have a winner and a loser. While we do have that title of proceeding, it’s incumbent upon us as members to step past the formalities of it and start talking. That’s why we have so many case management conferences. We have about 19 hearings a year and over 100 case management conferences a year. We just focus on getting the people to talk. It can go off the rails very quickly if parties want to get their own experts and then they have reply expert reports. It is an everyday type of, “Let’s talk to see where we can find the middle ground.”
Senator Boniface: I assume, then, when it comes to implementation, then it goes back to the federal government. Do you lay out the implementation steps as part of the decision?
Ms. Chiappetta: When you say “implementation,” do you mean payment?
Senator Boniface: Yes.
Ms. Chiappetta: Once the decision is made, it’s a binding decision, so it has to be paid just as if it was any court order. It gets a bit different and somewhat delicate when it’s a settlement. When it’s a settlement, then not only does it have to go through certain stages of government, but it also has to be approved by the entire community. We don’t let it go. We don’t say, “You’ve settled, you’ve shaken hands, we’ve signed here, and the tribunal is done.” We follow up to ensure that it’s actually done, and we try to use language in the settlement agreements that makes it easier for the parties who are at the table agreeing to it to tell the parties, who have to pay it or also agree to it, why it should be done.
Senator Boniface: Your point is at the end of the road then, and then from a broader communication perspective that’s between the parties to do. I’m thinking about people understanding the claim and how it impacts neighbouring communities and stuff like that, how we raise the understanding.
Ms. Chiappetta: I found that the chiefs are so important and significant in speaking to the community. When they are speaking to the community about a settlement, everyone is listening and everyone is asking questions. I find a more united reception than anything else. It is usually the chief who does the explanation as opposed to the lawyer that’s been retained to present the claim. I think it falls so much more significantly coming from the chief. Often, the elders who are involved in giving evidence on that claim, or would be if it went to a hearing, are involved in that explanation as well, so that level of deference and trust is there. It’s not a member of the government going into the community and it’s not me going into the community to explain why this is a good deal. I think that’s why we’ve been able to achieve the success we have, because we let the communication come from the people who should be communicating to the community.
Senator Boniface: That’s great. Thank you.
The Deputy Chair: Justice Chiappetta, a couple of points: What factors contribute to the delays in making final decisions on specific claims in the tribunal process? Secondly, how can those delays be addressed by the Specific Claims Tribunal or the federal government or the parties in the process, in your opinion?
Ms. Chiappetta: We are on average about five and a half years out from the time that the claim is filed with the tribunal to the time of final resolution, either by decision or settlement. I’d like to see if we can do better. Part of the contributing factors have been that the evolution of the claims since its inception has developed so that there is a lot more expert evidence being put before the tribunal than when it first commenced. Now you have historical expert reports and you have compensation expert reports. Inherent in a system of that sort is that you’re at the mercy of those experts’ time line. There are only very few people who do that. Sometimes we see delay because the compensation experts, for example, need a year before they can provide the report. That’s a year where we could have had the hearing and a decision. Our decisions are turned quite quickly. The issue is developing that evidence.
I’ll talk about one of the ways we have addressed it first, and then I’ll talk about one of the ways I think we can address it going into the future. One of the ways we have addressed it is traditionally what was happening at the tribunal is that the claims were being bifurcated between the validity stage of the hearing and the compensation stage of the hearing. You can see why logically that would make sense. The claimants are subject to funding cycles. If the funding cycle is such to permit the validity stage, why then spend money getting your compensation stage ready if your claim is going to be found not to be valid? What we saw in 2020 and onward is a trend where claimants were opposed to bifurcating the claim. Their position was that they would rather prepare the whole claim because there’s been too much of a delay between the finding of validity and the finding of compensation because then everyone had to go out and get their compensation experts, which was taking sometimes two and a half to three years from the date we found the claim valid. Now a lot of our claims are not being bifurcated. When they come before the tribunal, immediately the historical and compensation experts are being retained and we can get to a hearing faster, which means we can resolve the claim or at least have the evidence to negotiate the claim faster.
One of the ways going into the future that we’ve looked at is looking at the rules that govern our procedure. These rules were developed in 2008. We know more now in 2023 than we did then. It’s incumbent upon us to take a look to see if there’s anything in there that we can use and change to speed up the process. For example, perhaps we put something in the rules that says that we have to have a joint expert report. That means we have one. We can agree to the scope. We can agree to the expert. We can allow one party to perhaps cross-examine on that or provide a reply report if they’re not agreeable. Those are very delicate discussions to have. Because of that, we’ve constituted an advisory committee. This is not something that legal minds are going to solve on their own. We need a lot more help. We need community assistance. We need people who have done the research. We need people who were there in 2008. We need people from all over Canada who have different ideas and input. That’s one of the things we’re looking into, because I think it’s time. We’ve had those rules for over a decade, and maybe we can tweak them a bit to assist in the process.
The Deputy Chair: I really like the process, for sure. I notice that litigators just love to litigate, and that doesn’t really bring us to reconciliation.
Ms. Chiappetta: I couldn’t agree more.
The Deputy Chair: Do you use mediation in your process? When you talk about negotiation, are you as the tribunal sitting in on the negotiations and fostering them?
Ms. Chiappetta: That’s another area of the rules that we’re looking at, actually putting into the rule that judicial mediation is available or member mediation is available. Until we get to that point, what I’m doing is just going around and talking to as many people as I can to tell them that our complement at the tribunal is such that we can accommodate member mediations. If you feel that it’s worthwhile to sit around the table and talk about settlement, you have choices. You can ask us to stay your hearing and negotiate on your own, or you can ask us to stay your hearing and go to a private mediator, or you can stay with us and we will assign you a member who is not a member that will hear your case to get in the weeds with you on your claim and say, “If this was going to a hearing, this is what I think.” That’s the only way it’s going to work. I need the freedom to say that this is going to win, and that is not going to win. This will be successful, and that is not. Let’s find the compromise. We’re making that available, and we are able to do that because we have the complement in place.
Senator LaBoucane-Benson: I’m really happy to hear about how you’re setting the table for negotiation and the examination of the rules. When you say you’re examining the rules, are the rules embedded in legislation?
Ms. Chiappetta: The rules are a statute, yes, but it’s not the act. It’s not the Specific Claims Tribunal Act; it’s the rules of procedure for specific claims, which is a very different process in terms of looking to revise them. We started with the rules because we thought that we would be able to have some success. If the advisory committee has consensus, then it’s a committee of consensus. It’s not a committee of consultation. If we all agree that these rules should be changed in this way, then we would be taking the process forward. But we’re not looking into the act.
Senator LaBoucane-Benson: Does the act require changing, though? Is that something our committee could study that would be of benefit to you?
Ms. Chiappetta: It’s always a good idea to take a look to see what we’re working within and whether or not we should revise it to make the work we want to do better. I’m a creature of that act, and my jurisdiction is within those four corners of that act, so it’s not appropriate for me to say whether it should or should not be changed, but I will say it is always a good idea to take a look to see if we could do better.
Senator LaBoucane-Benson: Duly noted.
The Deputy Chair: That was my question. I want to amplify that a bit because it is helpful to have this review here today and to have this information in front of the committee.
You may not be able to answer this, but the idea would be whether this committee could make some recommendations to some ministry to enhance what you’re doing. I don’t know if you have enough resources or judges to do the work. Could you get better results in a sooner time if you had more resources? Is there anything this committee could do in terms of recommendations that would assist you in getting to where you want to go by improving the process and getting a better result, perhaps, but certainly results in a shorter time frame?
Ms. Chiappetta: Let me speak first to resources. Since I have been at the Specific Claims Tribunal, and since I’ve been chair, I’ve never been prevented from doing what I want to do the way I want to do it because of resources. I think my members feel the same way. Our complement is in a place where we can do the work we need to do.
Your second question is important, and one that requires a little more thought and contemplation for me. It is a wonderful opportunity that you’re giving to me to say, “What do you think we should be doing or could be doing to assist in the effort to reduce the time?” I would like a bit of time to think about that and provide you with my thoughts in writing, if I could.
The Deputy Chair: That would be appropriate and very helpful to us. We’re motivated to help you because we see the good work being done and the good results. Please do that, and if we receive the communications, the steering committee will deal with the issue and bring it to the whole committee at some point.
Ms. Chiappetta: If you have further questions after that, I’m happy to come back and talk to you about this whenever you want. It’s something I’m passionate about and privileged to be doing this work. I’ve been a judge for over 10 years, and it’s the most significant contribution I am making to my service, so anything I can do to assist, I am here as well.
The Deputy Chair: Thank you very much for coming here this evening and enlightening us. It has been wonderful to hear from you, and we will take you up on that offer. We look forward to perhaps hearing from you. If you wanted to come back and have more amplified discussion, if you put a paper forward, and then answer some of the questions, the committee would be happy to meet with you directly and make sure we understand every issue you would like to see addressed. Thank you for coming this evening.
We will move to the last part of our meeting.
(The committee continued in camera.)