Indigenous and Northern Affairs Committee on March 3rd, 2011

[The Chair, Conservative, Bruce Stanton]

Good morning, members, guests, and witnesses.

It's great to see you here for our 51st meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Pursuant to Standing Order 108(2), we continue our consideration and study of the Specific Claims Tribunal process.

This morning we're delighted to have with us Justice Harry Slade, who is the chair of the Specific Claims Tribunal. With him, we also welcome Alisa Lombard. Alisa is the law clerk with the tribunal, I presume.

Justice Slade, perhaps you can introduce your other colleague...?

Oh, I'm sorry. Thank you. We also have with us Mr. Ed Ratushny.

Is that the correct pronunciation?

[Professor Edward Ratushny, Professor, Common Law Section, Faculty of Law, University of Ottawa, As an Individual]

[Inaudible—Editor]...Ukrainian.

[The Chair, Conservative, Bruce Stanton]

Okay. Welcome. We're delighted to have you here this morning.

As we customarily do, Justice Slade, we begin with an opening presentation or remarks from yourself for up to 10 minutes, after which we go to questions from members.

Please go ahead with your presentation. We welcome you here today.

[Mr. Justice Harry Slade, Chairperson, Specific Claims Tribunal Canada]

Thank you, Mr. Chairman.

I did prepare a paper, and I think the honourable members will perhaps be relieved that I don't propose to take you line by line through it, but I thought that in light of the question around the study on the Specific Claims Tribunal process, and on issues relating to a process where claims have a value exceeding $150 million, it might assist the honourable members to have a more fulsome statement of the tribunal's mandate and the process than time permits in an oral presentation.

I'd say first that the members of the tribunal recognize the importance of the government initiative in the advancement of Bill C-30, the Specific Claims Tribunal Act, and that this is in furtherance of an agreement with the Assembly of First Nations that also provides for the residential school apology, the Truth and Reconciliation Commission, and a new dialogue on larger questions around aboriginal rights and interests. It also acknowledges the support for the enactment of Bill C-30 by all parties. This is plainly a significant step toward the reconciliation called for by section 35 of the Constitution Act of 1982.

As a member of the tribunal, as chair of the tribunal, and as a judge, of course, I'm bound by principles of independence and the related duty of impartiality, so I must take great care not to comment on any matter that could come before the tribunal or before any court. The traditions of the judiciary and our constitutional relationship with the legislature and the executive branch say that I must avoid any comment on anything that might have a political aspect.

So with all that said, I'll start by observing that the act provides for court-like processes in the adjudication of claims, but it's notable that the preamble to the act speaks to an objective that some may see at odds with a court-like process, which by its nature is adversarial. I will present a couple of paragraphs from the preamble. In it, we have a statement that “resolving specific claims will promote a reconciliation between First nations and the Crown” and also a recognition of “the right of First Nations to choose and have access to a...tribunal to create conditions that are appropriate for resolving valid claims through negotiations”.

It's with this in mind that the rules of practice and procedure that the tribunal has established in consultation with an advisory committee made up of first nations organizations and representatives, members of Indian and Northern Affairs Canada, including the specific claims branch, and members of the Department of Justice, place a heavy emphasis on active case management of claims brought before the tribunal.

We've built in a rule that integrates mediation into our process. The idea here for the operation of the tribunal in the process is to identify, in the first instance, the core issues that go to the validity of a claim where validity is in issue.

Members of this committee will appreciate that some claims are likely to come to us not as a consequence of the rejection of the claim, but as a consequence of the claim having been in negotiation for three years without resolution. We're anticipating that some claims will require determination of validity and compensation, while others will require determination of compensation alone.

In case management, as with the courts these days, the tribunal will seek to identify the core issues around validity--the core issues going to the determination of compensation--in an initial effort to assist the parties in zeroing in on what really separates them, in the hope that it might better facilitate the negotiated resolution toward reconciliation that's contemplated by the preamble to the act.

This approach also promises a meaningful engagement of first nations peoples in the process, as negotiation and mediation is a process rather different from the adversarial-oriented processes before the court. It's important that some of the court-like processes be available. The act establishes finality where a claim is adjudicated on and is the subject of a ruling. Therefore, procedural fairness and substantive fairness require that full disclosure be made by both parties in the interest of leveling the playing field and ensuring that both parties--in particular, the claimants--can be satisfied that they're proceeding in a process that is fair and transparent.

We're hoping to open the doors in April this year. There are a few things left to be completed before we can do that. We have developed our rules of practice and procedure, but we're required by the Statutory Instruments Act to go through their process to conform our rules to federal drafting standards.

Our rules are examined by officers of the Department of Justice in this process to ensure their conformity with the provisions of our act. That's proving to be a somewhat longer process than I'd anticipated; it has the potential to delay the opening. But I'm confident that the folks in control of that process at the Department of Justice are applying themselves diligently to the task. Since arriving in Ottawa, I've learned a great deal about the pace at which things move through various offices. It's a little different from practising law or being a judge, that's for sure.

Our jurisdiction primarily relates to the taking of reserve lands, either under lawful authority where compensation has not been adequate, or without lawful authority. Part of our jurisdiction extends to matters where it's alleged that there are unfulfilled treaty promises, fraud by persons in positions of trust and authority, and misuse of Indian moneys, as that term is defined under the Indian Act.

Broadly stated, those are the matters that would come before the tribunal after being reviewed in the INAC specific claims branch process. Where the claim is rejected by the minister, it can come to us. After three years of negotiation without settlement, it can come to us.

At this point, it's difficult to say what resources, in terms of tribunal members, support staff, and funding, we'll require once fully operational. The geographic distribution of claims is to some extent reflected in the fact that amendments to the Judges Act that accompanied Bill C-30 gave British Columbia three more Superior Court judges, Ontario, two, and Quebec, one.

Our act provides for six full-time equivalents--a term I was not familiar with until I got to Ottawa--made up of up to 18 judges contributing no more than one-third of their time. I will say that this idea has presented some unique challenges that will need to be worked through in time, as part-time judges of course would have to have their tribunal work integrated with their rota in handling matters before the courts.

As you know--and of course it's central to the matter before you-- the cap on compensation that can be awarded by the tribunal is $150 million. In the specific claims process, this raises some questions that at least I consider interesting.

For matters that come before the tribunal, of course, or through the specific claims branch, as I understand their process, the initial question is whether the claim is valid. If it's determined not to be valid, it's my understanding of the process that they really wouldn't get down to the question of the amount of compensation. Why would they? In many of these claims, to advance the compensation case would be extremely costly. There may be estimates of compensation indicated, but I very much doubt that those estimates would be authoritative in the sense of being supported perhaps by expert evidence on valuation. So in that process, if a claim is rejected, I'm at a bit of a loss to understand how it could be known that its value exceeds $150 million.

Now, turning to the process before the tribunal, I think the starting point for the documentation that the tribunal would have before it is the material that comprises the minimal standard, or meets the minimal standard, that the Specific Claims Tribunal Act provides for in section 16. That section requires claimants who are entering the Specific Claims Branch process to provide documentation that complies with the terms of a minimal standard document established by the minister--and the minister has done that--which of course is a public document.

That minimal standard document does not call on claimants to state the quantum of compensation sought, and in the process before the tribunal, the claimants, at the validity stage, would in my estimation be unlikely to have developed their case on compensation. It seems quite possible to me that a claim might be presented to the tribunal where the first issue is validity, without much of a handle on whether or not the claim is valued in excess of $150 million.

I can envision a scenario where we'd be in the process before the tribunal addressing validity and having it turn out, if validity is established, as hearing evidence that could establish a theory of compensation at a figure exceeding $150 million. Of course, at that point, the claimants would be facing our statute's limit of $150 million, and one might consider the question whether at that juncture the claimants would be pressed to continue in the process before the tribunal, knowing the statutory limit on compensation that can be awarded, or pursue other avenues toward the ultimate resolution of a claim validated by the tribunal.

That concludes my opening remarks. I hope I haven't gone too far over time. I welcome any questions the honourable members may have for me.

Thank you, Mr. Chairman, and thank you for your attention.

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Justice Slade.

We will now go to questions from members, but I will just reiterate what we heard from Justice Slade this morning, which is that discussion around specific cases or interpretation of the law obviously will be an area that will be difficult for Justice Slade to comment on specifically. I just reiterate his earlier comments. We'll guide our questions accordingly.

Let's go to Mr. Russell.

This will be a seven-minute round.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good morning, Justice Slade. I want to welcome you and your colleagues to this study.

I was around this table--not this specific one, but the aboriginal affairs table--going on two and a half or three years ago when this particular piece of legislation was being driven in an expedited fashion, maybe a bit more expedited than some of the processes that you've been engaged in thus far. There was an urgency around getting this legislation through, not only on the part of the government, but on the part of the Assembly of First Nations as well. There was a huge backlog. We were given the numbers of 700-plus claims at the time and as high as 800-plus claims.

We're two and a half years out and we're not operational yet as such. I know that it takes some time to get such a complex process up and running, but there was an urgency expressed by the government and we're almost two and a half years out and we're not yet operational.

In your report, you state that there may be some friction. I don't know if that's the right word, but certainly you have some concerns about the interaction of the registry of the specific claims and the tribunal process itself, the independence, the control of the registry in terms of administration and things of that nature. Has any of that been addressed? Has that been an issue that has slowed down this process in terms of operationalizing the tribunal? Would you say that the tribunal aspect that you're more responsible for is further ahead than the registry itself?

My understanding from reading some of the material is that the registry is not yet up and running, and it won't be up and running for another month, when somebody can actually say that he put his claim before the specific claims registry. I just want you to comment on that.

As well, you raised a very good scenario with the claims over $150 million. When we discussed this legislation, there was sort of a parallel process that was supposed to take place about claims over $150 million.

What happens if an organization comes forward without establishing the compensation issue or the valuation? You validate the claim, you negotiate it, and then the tribunal says that a hell of a case has been made that compensation in excess of $150 million needs to be provided. Does the act then apply or does the ruling apply? You could award up to $150 million under the legislation, but in the compensation you adjudicate, for lack of a better word, you come down with a ruling for $250 million. What happens at that point?

I'm interested in the registry and the tribunal issue and this issue of over $150 million.

[Justice Harry Slade]

Mr. Chairman, these are important questions. I'll speak first to the honourable member's question about the time it's taking to get the tribunal operational.

We're close, but not quite there yet. The act came into force October 2008. I was one of the three judges first appointed to the tribunal on November 27, 2009. Concerns had developed prior to my appointment and the appointments of Justices Patrick Smith and Johanne Mainville. We initially took appointments for one year, as there were matters of concern to us and, I think it's fair to say, to other judges. Of course, it's important that judges view this tribunal as something they wish to participate in.

Initially, our mission was to address certain problems, one of which was the way the registry had been established. Of course, the registry, having a vote of funds, becomes a government department under the Financial Administration Act and has to have a deputy head, and that deputy head has various authorities. Under our act, the tribunal is said to have various authorities. There was a period during which it was difficult to reconcile the two.

Now, I'm happy to report, we're past all of that. We have recently been joined by a new registrar who is well experienced in court processes, who understands principles of judicial independence, and who understands the distinction between the authority of the tribunal as an adjudicative body and a rule-making body and that of the provider of corporate services to the tribunal, that being the registry. So we've cleared that hurdle.

Mr. Russell, you've made reference to my annual report that was filed on September 30 last, as required by section 40 of the act. There are still some concerns over resourcing, but the reality is that we're not really going to know what we need until we get up and running and see what comes in. I think there's going to be some fast footwork once that happens if we find ourselves short, but I'm confident that we'll receive the support we require financially to operate.

[The Chair, Conservative, Bruce Stanton]

We're running pretty close to the seven minutes, Justice Slade, so just a short response to the second part of Mr. Russell's questions would be great.

[Justice Harry Slade]

Well, on the $150 million, we can't exceed it, but if we've made a decision on validity and it proves that compensation in excess of $150 million is indicated, I think we could hear evidence of that. But we'd be constrained by the cap in any ruling we may make, and the claimant would be faced with a choice to proceed through with the tribunal or to pursue other avenues.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Russell.

I now invite Mr. Lemay to ask the second question.

Mr. Lemay, the floor is yours.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you.

Mr. Justice, I will let you—

[Justice Harry Slade]

Bear with me for just a moment, sir.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Is it working now?

Thank you, Mr. Justice, for being here today.

On behalf of the Bloc Québécois, I was significantly involved in setting up the Specific Claims Tribunal of Canada because we believed, and still believe, that it is a way that is and that must be efficient for resolving specific claims under $150 million, and there are an enormous number of them.

I read your report, in English and French, and one thing concerns me. When people acted so that we would adopt Bill C-130, which would set up the tribunal, we were assured that the Specific Claims Tribunal of Canada would be independent from Indian and Northern Affairs Canada. As a lawyer, I believe that this is extremely important. With respect, Mr. Justice, I have some doubts. Between what I see in your September 30 report and what you have said here today, it seems to me that there has been some development toward independence, which is extremely important. I don't need to remind a judge of the importance of a tribunal's independence. And as for the aboriginal communities listening to us today and who are going to appear before the tribunal, they do not necessarily know if you report to the Department of Indian Affairs and Northern Development. They feel that, if their claims were initially rejected, they are going to lose their time before the tribunal. This is my concern. We've been told that a judge of the Superior Court of Quebec would sit on the tribunal, while remaining a judge of the Superior Court of Quebec, which would ensure its independence.

I would like to be reassured about what you wrote on September 30 and what you have told us today. Your report also refers to the fact that there are still areas of concern regarding the current association of the tribunal clerk with Indian and Northern Affairs Canada—you wrote it in black and white—and the need to adopt an administration and governance model, and to define the powers.

You are doing an extraordinary job, I'm convinced of that, but how can we help you? Can we do something to ensure the independence of the tribunal so that you can render judicial decisions? Because it's your role and it needs to stay that way.

You can take the rest of the time allotted to me to answer this question because it's an extremely important concern for me.

[Justice Harry Slade]

Mr. Chairman, I thank Monsieur Lemay for this question.

I have identified in my annual report several areas of concern, as they go to both the reality and the perception of the independence of the tribunal.

Plainly, first nations peoples as claimants--and perhaps whether claimants or not--need to be satisfied that the tribunal is functioning as an independent adjudicative body. The Canadian public deserves that assurance as well.

There is a connection, albeit a rather distant one, between the tribunal and the ministry, INAC, in that the registry of the tribunal as a government department is listed under the Financial Administration Act as falling within the ministry of INAC as the “appropriate ministry”.

Of course, claims that are rejected by that very minister find their way to the tribunal. I can't offer an opinion on whether that would raise a reasonable perception, in the mind of a well-informed person, of bias, in fact, or institutional bias. My own view is if that connection is not necessary, why would it exist, in that these claims are of a very sensitive nature.... But there it is.

Other concerns were raised in the report over the assurance of resources. We've made progress, but I have perhaps a little reluctantly come around to the view that we have adequate resources at the outset, on opening, and we'll have to look at that as matters proceed. I have every reason to hope and believe that we will receive the financial support we need.

One area of concern that lingers is, where are the judges going to work? I've set up shop here in Ottawa because I think the chairperson needs to be here. I'm a resident of Vancouver, and my spouse and my family are there. I can't speak for other judges, but how many are going to want to relocate to Ottawa, particularly if you're from Vancouver, if you get my drift...?

[Voices]

Oh, oh!

[Justice Harry Slade]

As for the idea of judges serving part-time, well, of course they will wish to know where are they going to work. Will they use their offices at the courthouses and their accustomed administrative and legal support staff, their law clerks? These facilities are provided by the provinces; therefore, in my respectful view, there needs to be some arrangement with the province that provides those resources. I understand that steps are being taken in that direction, but I don't know whether they have been concluded at this point.

[The Chair, Conservative, Bruce Stanton]

You'll have to wrap up there now.

[Justice Harry Slade]

There were a number of concerns. We've made very tangible progress on the practical stuff. With a new registrar, we have a lead in our registry now. We've effected some rather significant cost savings.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lemay.

It is now over to Ms. Crowder for seven minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

Thank you, Justice Slade, and thanks to your team that is with you.

I'm from British Columbia, of course, and can well understand not wanting to set up shop in Ottawa. I love Ottawa, but....

[Justice Harry Slade]

We're on the same team this morning.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Yes, exactly.

I have a couple of questions around resources. Just for a point of clarification to help me understand how this works, does the tribunal itself have a separate budget from the registrar or does all money flow through the registrar's office?

[Justice Harry Slade]

There is no separate budget. This is one of the things I learned on the first day: that the vote has no line item.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Just so I'm understanding this, every dollar that you get has to flow through the registrar. You have no independent budget.

[Justice Harry Slade]

Correct.