Debates of Feb. 7th, 2003
House of Commons Hansard #55 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was claims.
- Report of the Federal Electoral Boundaries Commission for Manitoba
- Business of the House
- Specific Claims Resolution Act
- Chinese New Year
- Dorothy Rungeling
- National Library of Canada
- Queen's Jubilee Medal
- Black History Month
- Riding of Jonquière
- International Development Week
- Species at Risk
- Canadian Coast Guard
- Canadian Alliance
- World Social Forum in Pôrto Alegre
- Black History Month
- Veterans Affairs
- Border Security
- Firearms Registry
- Child Pornography
- The Environment
- National Identity Card
- Goods and Services Tax
- Softwood Lumber
- Government Contracts
- National Defence
- Aboriginal Affairs
- Gasoline Prices
- Child Pornography
- Foreign Affairs
- National Defence
- Employment Insurance
- Human Resources Development
- The Environment
- Human Resources Deelopment
- Presence in gallery
- Points of Order
- Government Response to Petitions
- Questions on the Order Paper
- Question No. 100
- Questions Passed as Orders for Return
- Question No. 48
- Specific Claims Resolution Act
- Solicitation Laws
Report of the Federal Electoral Boundaries Commission for Manitoba
The Acting Speaker (Ms. Bakopanos)
It is my duty, pursuant to section 21 of the Electoral Boundaries Readjustment Act, to lay upon the table a certified copy of the report of the Federal Electoral Boundaries Commission for Manitoba.
This report is deemed permanently referred to the Standing Committee on Procedure and House Affairs.
Business of the House
The Acting Speaker (Ms. Bakopanos)
Pursuant to Standing Order 81(14), it is my duty to inform the House of the motion to be addressed Monday in studying the business of supply.
That this House consider the sending of troops to Iraq by the government only after the United Nations Security Council has passed a resolution explicitly authorizing a military intervention in Iraq.
This motion, standing in the name of the member for Saint-Jean, is a votable motion. Copies of the motion are available at the Table.
Specific Claims Resolution Act
Bob Nault Minister of Indian Affairs and Northern Development
moved that Bill C-6, an act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other Acts, be read the third time and passed.
Madam Speaker, there are countless compelling reasons to support this important legislation. Perhaps most important, the specific claims resolution act would enable us to achieve honourable and just settlements to some of the longstanding grievances of aboriginal people, yet of all the arguments, few are more persuasive than the fact that this act would create opportunities for unprecedented economic and social development in first nations.
The Canadian centre for the independent resolution of first nations specific claims established by Bill C-6 will usher in a new era of cooperative and impartial negotiations; negotiations which will allow us to more efficiently address the grievances of the past so we can focus on building stronger, more self-sufficient first nations communities in the future.
One of the greatest benefits of the bill is that it reflects the priorities identified by aboriginal communities. In response to the recommendations of the First Nations-Canada Joint Task Force on Specific Claims, we are proposing an independent centre that would operate at arm's length from government. It would be comprised of a chief executive officer and two components: a commission division to facilitate negotiations on specific claims and a tribunal division to resolve disputes involving those claims.
The centre would promote a fairer and more transparent process for the research and assessment of claims and to conduct negotiations. It would also establish a forum in which both parties can be held to account for their actions to resolve claims.
I want to go back to many years ago to reflect for a moment and advise the House that this is the third time in the last 50 years that we have attempted to create an independent resolution process for specific claims and claims for aboriginal grievances. I am proud today to stand in this place to recognize the hard work of the aboriginal joint initiative between ourselves and the first nations, in particular the AFN. We have gotten to a point where we are now talking about a piece of legislation that will remove the judge and jury type of philosophy that we have used in this place for many years to deal with these kinds of claims. We will now have, I believe, a very independent body to deal with these very fundamental issues of grievances of the past.
This is a very important step as it would increase first nations people's confidence in the process and help us reach agreements more amicably and efficiently. We would no longer be left with no alternative other than being bogged down in an adversarial court system. We would instead be able to resolve impasses before an impartial tribunal.
With the specific claims resolution act, we will be able to create a system that is more fair and just as important, more effective in settling specific claims. The claims resolution centre would provide a range of modern dispute resolution mechanisms to help to accelerate the rate of claims settlements.
All specific claims would have access to the centre's modern day bargaining tools which would include facilitation, mediation, non-binding arbitration and, with the consent of all parties, binding arbitration. These alternative mechanisms emphasize that the Government of Canada and first nations would rather negotiate than litigate, because negotiations save unnecessary delays and help to reduce costs.
As a labour unionist in my past life and a negotiator, I can say that one of the most important parts of arriving at arrangements between parties is the ability to have these modern tools at our disposal. Whether it is mediation, joint research, or the ability to go to arbitration when necessary, these are the kinds of tools the centre would bring to the forefront for the first time in our relationship.
It would be done with the independence of a commission whose members would be appointed by order in council, but they would be qualified people, as is done in the same fashion with other commissions right across the country. They would also, through the budget that would be set down for them, have the ability to use it in an efficient way to arrive at the kinds of arrangements they want and to get away from going to court, as we do on a regular basis.
I remind my hon. colleagues that not only first nations residents but entrepreneurs and communities all across Canada, aboriginal and non-aboriginal alike, profit from the settlement of these claims. Successfully completed specific claims produce a win-win situation for Canada as a whole.
The first obvious impact that comes to mind is the economic benefits they create. One key obstacle to the development of aboriginal businesses is the difficulty of getting the investment and the loan capital that companies need to grow. The certainty provided by claim settlements can help to bridge this gap.
Settled claims pave the way for partnerships among first nations and the private sector, governments and other Canadian communities. Once claim settlements have been reached, the door is open to expanded opportunities, such as joint ventures with non-aboriginal businesses. Investors can proceed with confidence and first nations can negotiate from positions of strength.
The strongest cases for settling specific claims are the investments that communities make in their own development. For example, with the funds from its successfully resolved claim, the English River First Nation has purchased Tron Power, a general contracting firm which provides specialized construction services.
Equally important are the training opportunities these funds generate which create career options for young people living in aboriginal communities. The Kitigan Zibi First Nation used its $2.7 million settlement for both infrastructure and other social programs.
Of course from the first nations' perspective, perhaps the most critically important aspect of settled claims is access to land and resources. A number of first nations have purchased agricultural lands with the proceeds from their settlements to farm or to lease to non-aboriginal farmers. As one example, the Osoyoos settlement allowed the first nation to purchase a large orchard and further develop its vineyards.
Some first nations have purchased oil and gas producing lands with their claim settlements which generate revenues, employment opportunities and even sometimes joint venture projects. These partnerships benefit Canada not just from an economic standpoint, but they also strengthen the presence of aboriginal culture in the country and create new opportunities for the aboriginal and non-aboriginal communities to get to know each other better. As we all learn more about each other, we all learn to appreciate the value of different cultures and gain greater respect for our shared history. I am sure hon. colleagues would agree that we simply cannot put a price tag on that.
I want to remind the House that this progress is made possible through the settlement of first nations claims. By moving forward with the bill we can create a more positive climate for other aboriginal communities so they too can see business and other partnerships flourish.
As was made clear in the Speech from the Throne, the government is determined to move further and faster to achieve the same progress for first nations still awaiting the settlement of their specific claims. We know that the revenues generated by settled claims lead to greater partnerships and self-sufficiency. We know too that the end result of this economic success is the ability to better respond to community needs. This in turn leads to an improved quality of life for aboriginal people. It is this above all that we are determined to achieve.
For all the many good reasons I have outlined, the House must move forward in supporting Bill C-6. This economically advantageous and very necessary legislation will help to ensure that first nations people will finally see the grievances of the past resolved and can look forward to a brighter future. There can be no doubt that we all believe this will make us richer, richer as a country, richer as a people.
I know that in any discussion we have with first nations people, there are always other things they want as it relates to a piece of legislation.
But I think that in the general sense of what we have achieved here after 50 years of trying to get a piece of legislation before the House, we have achieved a good balance, a balance that the government needs to have as it relates to fiscal responsibility in a budget and also at the same time the independence necessary to work very closely with first nations on these grievances, these specific claims, in arriving at a just and very acceptable solution for all.
I thank the House for allowing me this time to voice our strong view that this is a good piece of legislation and one that needs to be supported by the House. I look forward to it coming into effect so that we can move very quickly to resolve the specific claims that are outstanding.
Specific Claims Resolution Act
Maurice Vellacott Saskatoon—Wanuskewin, SK
Madam Speaker, I rise today to speak to Bill C-6, entitled an act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other Acts.
For non-technical listeners today, a layman's explanation is that the bill is designed to set up a permanent centre to evaluate specific claims brought against the federal government by first nations.
An Indian Claims Commission already exists, but it was put in place eleven years ago in 1991, as a temporary measure, to stay until the Liberals got around to fulfilling their 1993 red book promise. That promise is nine years old now. In my view and in the view of others on the committee, the Liberals are still not keeping their promise with the bill before the House today.
For the most part, specific claims deal with outstanding grievances that first nations have regarding Canada's fulfillment of its obligation under historic treaties or its administration of first nations lands or other assets under the Indian Act. That is of course in contrast to the comprehensive claims, which are substantial land claim treaties such as the Nisga'a and Delgamuukw claims.
In other words, at points in our country's history, and maybe even until a few decades ago, there were sharp Indian agents, too sharp by half, who took native lands, who absconded and cheated first nations out of certain shares of that land. Some of these claims have been validated already, but for others, that was the whole point of this centre.
Bill C-6 proposes to set up a claims resolution centre made up of a commission and a tribunal. First nations will file a claim with the commission and if it meets the terms of an admissible claim for the purposes of the commission, the claim then will be submitted to the Minister of Indian Affairs and Northern Development for consideration. The commission then will convene preparatory meetings to help the claimants present their case to the minister. Upon completion of that phase of the process, the commission must then suspend proceedings until it receives a written response from the minister as to whether or not he will negotiate the claim. Therein lies the rub, and I will talk later about the stall and delay tactics that can be engaged in thereafter.
In other words, the minister is not given any deadline for making his decision. If the minister decides not to negotiate the claim, the commission will sit down with both parties in an attempt to help them resolve the question of the validity of the claim using alternative dispute resolution mechanisms.
If that process does not work, the claimant can then request that the case be sent to the tribunal, but only if the total amount of the claim does not exceed $7 million. If the tribunal decides that a claim is valid or if at the earlier stage in the process the minister decides to negotiate the claim, the commission then has to try to help the two parties arrive at an agreed upon amount of compensation.
If the compensation question cannot be resolved by the commission, the claimant can make an appeal to a tribunal to have the case heard, but again only if the compensation being demanded by the claimant does not exceed $7 million. The tribunal has the power to make a binding decision after it has heard the case.
The goal behind the bill is to expedite the process of resolving specific claims. Between 1970 and March of last year, Indian bands across the country had filed 1,146 claims and only 232 had been settled, which is less than 20%. The backlog is terrible. The cost in terms of human lives and suffering in the meanwhile is only getting worse, with both the government and first nations becoming increasingly frustrated with the current system.
Unfortunately Bill C-6 is not the legislation we need, despite the minister's pretext to the contrary. I certainly agree that the intent behind the bill is sound and the goal is correct, but the mechanism proposed is terrible. It will not work. What we have before us today is unfortunately a badly and deeply flawed bill.
At committee, the Canadian Alliance Party introduced about 40 amendments to the bill to improve it, to get it right, to make it fair and just and to make it work. But as we in the House of Commons know, the government always has a majority on a committee. The Liberal dominated committee voted against every single amendment we put forward. If it had passed even just one of those amendments, I might be able to stand here today with a message of some hope and some optimism for the Indians who are supposed to use the centre that the bill authorizes and for the taxpayers of this great country who are expected to fund this institution.
Unfortunately I cannot do that, because I believe the claim centre that Bill C-6 proposes will not work. It will fail because it does not have the confidence of the first nations people who are supposed to use it. It will fail because the $7 million cap on the claims that can be heard by the tribunal will significantly limit the number of claims the new centre will be able to consider. It will fail because it lacks transparency, concrete accountability measures and provisions to prevent patronage.
When it fails it will fuel the feelings of injustice and unrest among Indian people across our nation. It will put Canadian taxpayers on the hook for the cost of setting up and running this centre, but with no return, or a very negligible one, on their investment.
Taxpayers will also have to continue to pay the government's legal bills for the expensive court cases that will be launched in place of the mediated hearings that would take place in an effective claims commission and tribunal. First nations people will continue their uphill battle to have legitimate claims recognized over incidents of injustice and maltreatment at the hands of the federal government and its agents in violation of historic treaty agreements.
I want to discuss some of the reasons why Bill C-6 is such a flawed bill. I will revisit some of the current concerns we raised by way of amendment in committee and hopefully this time around the government will be listening. As a result, perhaps even at this late hour the government may be of a mind to withdraw the bill or to send it back to the aboriginal affairs committee for further examination.
One of the worst aspects of the bill, in contradiction to the proposals and recommendations that came prior to this in the lead-up to the bill, is the lack of independence of this centre. The government spent three years negotiating with first nations to come up with a plan for dealing with specific claims, or longer than that if we count some of the negotiations prior to that process, which produced the 1998 report of the Joint First Nations-Canada Task Force on specific claims policy reform.
That report reiterated the longstanding recommendation for an independent claims centre. The primary mechanism by which it would be made independent was a joint government-first nations process for appointing the commissioners and the adjudicators. Both parties were to develop a list of jointly approved candidates. The government would pick the commissioners and adjudicators from that list. However, the government has completely abandoned that particular key and crucial proposal.
In Bill C-6 the government has the exclusive prerogative of appointing and reappointing these officials and deciding whether to increase or reduce the number of commissioners or adjudicators, of course within the parameters provided by the bill.
Also, the three to five year review process mandated by Bill C-6 is to be undertaken only by the government, rather than by a joint team of government officials and first nations representatives or other vested interests. The government may, and again “may” is a slippery word, bring other parties into the review process, but it is not required to.
We certainly do not consider the government's track record of late to be one of transparency and disclosure when it comes to dealing with ethical violations. We hearken back to the lack of disclosures on the gun bill of late, to some of the deceptive stuff that was going on there. We do not believe that there will be the transparency and disclosure that is required for this centre to work properly. Therefore, the review process sends the message that the government is interested in the effectiveness of the centre from only its own perspective, rather than understanding its impact on all of the parties involved and concerned.
Indian chiefs from across the country, as well as the Assembly of First Nations, have made their position abundantly clear: that this appointment process mandated by Bill C-6 undermines any claim that the centre will be independent and impartial. If first nations use the centre at all they will not or will very reluctantly accept the rulings against their claims, because they lack confidence in the impartiality of this proposed centre. Unless the government has already decided that it will negotiate all specific claims, it has set up a process that really will not resolve anything in terms of producing closure on or finality for a particular claim.
The parliamentary secretary told us in committee that the minister would consult first nations, but having said that, he was unable to explain why the minister was unwilling to put such a promise into the bill, black on white, where all could see it and read it. Simply saying, “Trust me, I am from the government”, does not work today. It never did. If an MP were to try that, going back to the constituency and telling people, “Trust me, I'm from the government”, people would not be likely to swallow that real well, especially not when such a sentiment produces $1 billion gun registry fiascos and numerous other examples of gross incompetence and questionable ethics.
Canadians want to make their government accountable by seeing its promises stipulated in legislation so that there can be no backing out or waffling on what was intended by some verbal statement. Verbal assurances are not good enough and certainly not when there is the kind of legacy that this government has.
There is also concern about the possibility of patronage appointments to the new centre. There is nothing to prevent the government from resorting to its common practice of patronage and stacking it with its own people who are really not capable and not competent. They may have raised money for the party and done other kinds of things and maybe they are competent in that respect or that sphere, but not with respect to something as important, as crucial, and as complex as this might sometimes be.
The bill does not provide sufficient details on the credentials required of the commissioner or adjudicator so as to ensure that the person actually has some basic understanding of specific claims. Bill C-6 states that the majority of the adjudicators, those who serve on the tribunal, including either the chief adjudicator or the vice-chief adjudicator, need to be members in good standing of the bar of a particular province or the Chambre des notaires du Québec, but the bill states nothing about the professional qualifications of those eligible for appointment to the actual claims commission.
In a saner time one might have been able to trust the competence of appointments without more specification, but I am not even sure if ever in the history of our country we could. Right now a parliamentary committee is calling bureaucrats to account over the billion dollar boondoggle of the gun registry to determine their role in the out of control spending that took place there and the less than ideal amount of disclosure. Of course patronage is standard operating procedure for governments through the course of history of our country, particularly for the Liberal government. So we have real concerns about the need for greater clarity as to the credentials of potential appointees to the claims centre.
First nations have also expressed a concern that the appointment periods for the chief and the vice-chief of commissioners and adjudicators are only five years. For the regular commissioners and adjudicators the period is three years. There is the possibility of reappointment in all cases. First nations fear that these short periods of service will tempt the officials to rule in favour of the government of the day to ensure their being reappointed. I think they have a legitimate point.
I served on a district health board in my province as one of the elected members. We had eight elected and six appointed. I think fair observers of that whole process in Saskatchewan would be quick to say that yes indeed, when push came to shove, those who were appointed tended to be looking over their shoulders in terms of whether to be on the government side because of more money. Sometimes we were being underfunded or there were other issues, but they did not want to rock the boat very much because they owed their appointments to the government of the day. As an elected member, I did not. I was not at the government's beck and call. It was the old adage of he who pays the piper calls the tune.
Therefore, we think there needs to be a longer period of time so the officials are not so beholden to the government by way of the appointment process.
The government has abandoned the recommendation of the joint task force report. A number of these things that I am talking about today were from the joint task force report. Despite the statements of the minister here, first nations are not accepting of that. Our party is not, because we want a quick, expeditious and fair settlement of claims and this is only going to bog it down and make it longer, to the frustration of all parties involved.
We believe that the government has chosen to act in bad faith with Indians by securing exclusive control over the appointment process for the claims centre. As such, it has undermined the legitimacy and the credibility of the agency, guaranteeing its failure before it has even begun. That is a tragedy and it is one that victimizes first nations, some 600 bands across our country. It victimizes them all over again and also victimizes the taxpayers who have to pay out more because of that.
A third area of serious concern with the legislation is the complete lack of transparency. The provisions allow the government to stall, delay and stonewall the process of considering a claim.
If the minister, for example, were to decide not to negotiate the claim, he would have no obligation to explain his decision. Of course, if the claimant were to decide to challenge the minister's decision, he would need to provide complete disclosure in his defence. The minister does at a point much later along the way, if we even get there. The claimant, however, must provide a full accounting of his position and his rationale from the very outset of the process.
One would expect that in a context that is supposed to be conciliatory and guided by alternative dispute resolution mechanisms, rather than the adversarial environment of the courts, that the bill would make clear both parties' responsibilities for full disclosure. In a court of law or in any other judicial or semi-judicial proceeding it is not acceptable that only one is required to divulge his or her position fully, exhaustively and completely, while the other one has no onus at all in that respect .
The government has built a number of mechanisms into the bill to enable delay and obstruction in the process of considering a claim. It has avoided the establishment of tangible timelines, contrary to recommendations in the 1988 joint task force report that would have helped to ensure a speedy and effective claims resolution, which is what the Canadian Alliance, and the Reform Party before that, had insisted on.
The government also rejected the joint task force report proposals that would have given the claimant or the commission the ability to move the process forward if the government seemed to be taking excessive time to consider a claim. The first example of a stalling clause in the bill is the provision for multiple preparatory meetings. On the initial preparatory meeting, the commission is authorized to hold additional such meetings at the request of either party. The minister can conceivably use this provision to delay the process.
Indian representatives who spoke to us said that generally one preparatory meeting would be enough and that therefore the optional additional meetings would not likely to be found useful to first nations. Concern was raised that it existed more for the benefit of the government for use as a stalling mechanism. These meetings do not necessarily have to happen back to back and they can be strung out and protracted over a long period of time too.
The bill does not require the commission to hold additional meetings at the request of either party. One could imagine the government using this point in its defence. However, without protections in the bill to ensure that the commissioners are competent and patronage free, this means very little.
Later in the process, where the bill discusses the minister's need to consider the merits of the claimant's case and to make a decision as to whether or not he will negotiate the claim, the bill gives him six months to report back with a decision. That sounds well and fine enough for more complex kinds of issues and settlements but in clause 30 of the bill it states that the minister can come back to the commission in six months and, instead of reporting his decision, he can just simply say that he needs more time. Six months later he can come back again and say he needs more time. This could go on indefinitely. Therefore at first blush it might seem like a reasonable provision to ask for an extension of six months but if it is extended again and again, which it can be with no particular reasons other than he needs more time, then there really are no timelines or final deadlines provided at all. The government could theoretically ask indefinitely for additional six month extensions.
One of the amendments that we submitted, which we thought was a reasonable and fair amendment, would have put a one year limit on the process. However the government voted down that amendment. More specifically, our amendment would have required the minister to apply to the commission for more time, giving the commission the right to deny the government's request. It also would have required the commission to hear from the claimant before making a decision.
Currently, the bill does not require the minister to seek permission for an extension. The minister can make the decision unilaterally and the commission and the claimant are forced to live with it. The bill does not even require the government to provide its reasons for insisting on this extension to its reporting deadline.
We are dealing with a government that appears to, these days at least, despise accountability and transparency. Subclause 30(3) states that the government may, and there is that slippery word again, provide the reasons that it needs more time, and here it really compounds it, “if applicable”.
The way the clause is phrased it treats the practice of not providing reasons as normative by stating that the minister only needs to produce reasons if it is deemed applicable to do so. I do not know what situations would make it not applicable for him to provide reasons for delaying the process and leaving the parties hanging.
One of my amendments in committee was to delete the words “if applicable” but, alas, the government members voted it down.
Although I am not quite sure why, this secrecy provision is important to the government, even though the minister is secretive about telling us why it is important. It is the lack of transparency in the bill that raises serious questions about how effective it would be at clearing up the terrible backlog that exists today in specific claims.
The government even added a fourth section to clause 30 to protect itself against penalties for stalling the process. Subclause 30(4) reads:
No passage of time in relation to the decision on whether to negotiate a claim may be considered as constituting a decision not to negotiate the claim.
The government protected itself quite well there.
That subclause reinforces the fact that the bill makes no provision for the claimant to circumvent this part in the process. The commission may not treat the lack of a decision from the government as a decision one way or the other. It remains in limbo until the minister decides to announce his decision. It has no possibility of going another way, no recourse to some alternate route, until such time.
The Canadian Alliance proposed an amendment to delete that subclause from the bill but again the government members in the committee defeated the amendment.
I want to take a moment to quote the legal analysis of Bill C-6 produced by the Assembly of First Nations, being that the minister said that they were so much in love with the bill and supported it so grandly. The following is their analysis pertaining to the issues of accountability and transparency in the claim process proposed in the legislation. They state:
Under Bill C-6, the federal government unilaterally controls the pace at which claims are considered. Bill C-6 permits the Minister to “consider” a claim indefinitely at an early stage in the process. There are no time limits that must be obeyed. No independent body can ever say “enough is enough, the claim goes to the next stage.” A claim might have to go through an elaborate series of distinct stages and steps before compensation is ever paid. This could include:
The following is the AFN list:
a funding application; initial preparatory meetings; Ministerial consideration; mediation; further delays while the Minister considers an amendment that the claimant makes to its initial claim; an application and hearing to convince the Commission that mediation has been exhausted;
They tried everything and absolutely covered all the grounds. The list goes on:
a hearing in front of the Tribunal to determine compensation; mediation to deal with compensation; an application and hearing to determine whether mediation has been exhausted;
Even as I read this I am almost exhausted thinking about the long, drawn out and frustrating process. To continue:
proceedings in front of the Tribunal; a five year delay while the award is paid out; judicial review of the award.
The AFN continues:
Many of these steps could have been eliminated or combined. With others, the delays could have been controlled by giving an independent body control over the pace or by setting a strict time frame in the statute itself. The Joint Task Force Model Bill was built for making major headway on the backlog. Bill C-6 is almost certain to ensure that the backlog grows.
In a footnote to these comments, the AFN notes that:
Under the JTF Report, the Minister did not have the discretion to consider a claim indefinitely.
I think that was a good thing in the joint task force report.
Once a claim was lodged, the Commission and Tribunal, not the federal government, had theprimary say over the pace of proceedings. A First Nation was not required to attend more thanone preparatory meeting, or to prove to a third party that mediation or other “alternate disputeresolution” was exhausted...When a claim reached thetribunal, both validity and compensation could be dealt with together.
As I have examined the bill and the claims process in general, including the history leading to the place we find ourselves today, these observations strike me, generally speaking, as quite reasonable.
When the minister finally gets around to making a decision, if he decides not to negotiate the claim, the claimant can then request the commission to bring the minister to the negotiating table in an attempt to resolve their differences. That is where we face yet more problems.
The bill would require a claim to be heard twice by the commission and by the tribunal if the claim could not be resolved through the commission. It would first have to go through a validity phase, which is designed to determine the validity of the claim. After a claim is deemed valid, if the government decides to negotiate it or the tribunal rules that the government just get on and negotiate it, the claim would then have to go through a similar process in order to determine compensation.
As everybody knows by now, Bill C-6 includes a cap such that any claim valued above the level of the cap would not even be heard by the claims tribunal. The cap proposed in the bill is $7 million and whether or not a cap of some sort should exist at the compensation stage of the process, there is no reason that the cap should be proposed at the validity stage.
Since the bill would clearly separate these two parts of the process, it should be relatively easy, one would think, to eliminate the cap requirement for the validity stage. In committee, the Canadian Alliance introduced an amendment that would have done just that. It would have eliminated subclause 32(1)(c) which would have required the claimant to waive any compensation for the claim that is in excess of the claim limit. We wanted that subclause eliminated.
The government likes to point out that the cap is only applicable at the tribunal stage of the process, that there is no cap for claims heard by the commission, but if government officials knew that an unresolved claim at the commission level had to be bumped into the slow and expensive court system because it could not be sent to the tribunal, that would act as an incentive to stall and obstruct the process in the case of claims the government really had no interest, no desire or did not want to resolve.
In other words, although the cap would not apply directly to the work of the commission, the other side of it is that it, nevertheless, would have a significant and severe impact on the work that would take place there as well.
Perhaps the reason for preventing access to the tribunal for determining validity for costly claims is strictly political. Some first nations have told me that a tolerable compromise might be a measure similar to the one that is available in the current Indian Claims Commission.
The current commission cannot issue binding decisions on a claim but it can prepare non-binding reports that first nations could use to generate some political pressure on the government at least, if they feel the government is unfairly stalling in the resolution process. That is more likely the reason that the Liberals do not want an expensive claim to come before the tribunal, even to deal with the matter of validity. The unfortunate result is that far fewer claims will be successfully processed through this new claims centre than the government hopes.
Another problem with clause 32 is the obstructionist language used in terms of the requirements the claimant would have to fulfill before the commission would be permitted to send a claim to the tribunal. A claim could go to the tribunal if the government refused to negotiate it following the discussions facilitated by the commission with the help of alternative dispute resolution mechanisms. However if the claimant still wanted to pursue his claim he could ask the commission to refer it to the tribunal for a binding decision. The problem here is the excessive threshold of proof that the bill would impose on the claimant before his claim could go before that tribunal.
Subclause 32(1)(a) states:
the basis for the claim and all matters of fact and law on which the claimant relies in support of the claim have been fully and clearly identified and adequately researched and have been considered by the Minister;
Subclause 32(1)(b) states:
all dispute resolution processes appropriate for resolving the issue have been exhausted without the issue having been resolved;
These sections, essentially, would require the claimant to prove to the claims commission that he had done absolutely everything that he could possibly do, no stone unturned. The onus would be on him to prove that he had done that within the alternative dispute resolution process before the commission could send that claim to the tribunal to consider its validity.
The absolutist language in that subclause would impose an excessive, if not impossible, threshold of proof on the claimant before he would be permitted to pursue a hearing before the tribunal. If pro-government patronage appointments were sitting on the commissions, and we think there is every likelihood of that, they could help the government use this provision as yet another stalling tactic. If the claimant does not have every single t crossed and every i dotted, this step in the process could be a place to delay justice for aboriginal people. We think that cannot and should not be and, unfortunately, it is again, to the detriment of native people across our country.
First nations have pointed out that they support the use of alternative dispute resolution mechanisms and that if the alternative dispute resolution process is working for a particular claim, it really is in their interest to make it work. First nations therefore say that they do not understand why the government is using this big stick approach to ensure the use of alternative dispute resolution mechanisms, unless it is another mechanism to be used as a stalling tactic to force the claimant to continue to sit down again and again with the federal government even long after any reasonable person, any outside fair-minded observer, would say that there is nothing further to be gained by additional negotiations.
One comment we received from first nations on this issue is as follows:
Alternate dispute settlement mechanisms, such as mediation, only work if both parties are committed to making it work. The best judge of that is the parties themselves. A claimant should not have to “prove” to the commission, in another potentially very expensive and dilatory proceeding, that alternative dispute resolution is “exhausted”. The current provision allows the federal government to further stall and frustrate the process by dragging its feet with respect to its participation in the alternative dispute resolution process.
I want to move to the compensation phase of the process. Assuming the tribunal has made a binding decision if the claim is valid, both parties then have to go back to the commission to try to negotiate the appropriate compensation for the claim. That is dealt with in clause 35 of Bill C-6. Subclauses 1(a) and 1(b) of this clause duplicate those found in clause 32. We have talked about that before, and the same reasons why it is so flawed and problematic apply in this case here.
We introduced amendments in committee to improve these clauses, but again they were defeated by the government without explanation. This was the course, a stony silence on the other side. Even when its own member on the committee asked for the reasons for voting down some of these amendments, there was dead silence. Other times there were other offhand remarks that were not respectful of the process.
Some first nations have said that if alternative dispute resolution mechanisms do not work by the end of one year, there should be a provision for the claimant to request that the claim be transferred to the tribunal. One representation we received, stated in part:
After one year of attempting to negotiate a resolution, the claimant should be free to proceed to the tribunal. It should not have to go through further hoops, involving additional delay and expense, to show that it tried to exhaust other means of settlement. It is unnecessary and unfair to require the claimant to exhaustively state its case, including all of its evidence and legal arguments, prior to that tribunal hearing. No one is required to do so in any other comparable litigation or arbitration context.
The representation went on to state:
The Minister should not be able to delay resolution by dragging a First Nation through a slow or endless series of “negotiations”. Any First Nation that can achieve a reasonable settlement by negotiation will do so. Why would it risk losing at the tribunal?
That is a very valid point.
They certainly seem to me to be reasonable observations. I am not saying that no criteria should be stipulated as a basic requirement of part of the process, but we think that the claimant should be able to proceed without being stalled or stonewalled in that way. It has to be something met by the claimant before the commission can transfer it to the tribunal. Perhaps there are ways that I or others in committee have not thought of, but more thought could be given to that, if in fact a claimant tried to unfairly take advantage of a situation in which no criteria were required. At the very least, the criteria should be modified with changes to the absolutist language that currently exists in the bill.
Subclause (1)(d) of clause 35 requires the claimant to waive any compensation amount higher than the cap stipulated in clause 56, which is currently set at $7 million. We introduced an amendment to increase the cap to $25 million. I will be talking about this more in a moment.
When we think about the section before us, we have to realize that the claimant is really being asked to waive his right to a claim amount higher than the designated cap before even knowing what the final value of that claim might be. That strikes me as being rather perverse. The longer a claim takes to be resolved, the more its value grows in terms of interest and appreciation. If a claim is close to the value of the cap or if the government stalls the resolution over many years, the value of that claim rises above the cap. Claimants who have signed waivers have to essentially take a loss in terms of the maximum amount they can receive from the federal government for the claims.
If it is ruled an authentic claim, then questions arise about the legitimacy of attempts to get the claimant to accept the compromise. We well understand that the government does not have an unlimited pot of money, but it raises some serious philosophical and practical questions when we allow the fiscal limitations to guide, in this case, the government's decisions about whether it will honour contractual and treaty obligations. Others have to declare bankruptcy to escape fiscal obligations. To hold the government to a lesser standard of contractual obligation, is to grant it the right to exercise arbitrary power.
As I stated earlier, there might be issues of jurisprudence that should be revisited, but to maintain respect for the rule of law, the government should be held accountable to honour whatever jurisprudence it has chosen to accept.
The claimant already has had to waive a compensation amount over the value of the cap before the claim can even proceed to the tribunal at the validation stage. The claim might be well more than the $7 million, and that is the whole purpose of the process. However claimants have to waive that, or sign away their life so to speak, at the outset of the process and that seems hardly fair. It is not even clear why they have to sign waivers a second time prior to the tribunal accepting it for the purpose of determining compensation.
There are other aspects of the clause that might have some merit, although I expect that is rather open to debate. However due to the government's refusal to make the important amendments proposed by the Canadian Alliance in committee, I introduced an amendment to delete the entire clause from the bill.
The government has not told us what it is afraid of when it comes to being held to the same standard of accountability that first nations are held to with this piece of legislation. Yet time after time in committee amendments, from the Canadian Alliance as well as from other parties, that would have introduced stronger measures for accountability and transparency into the legislation were defeated. It just shows how self-important or maybe even arrogant a government can become.
Most of the amendments were put forward with sincerity and reasonableness but were defeated without explanation. Committee members from the various opposition parties continually asked the government members to explain why. From time to time we had wringers in committee, and I am sure we are all familiar with that term. They walked into committee totally unaware and out of the loop of the discussion beforehand. Therefore we understood why they could not explain. However no attempt was even made by other committee members who had been supposedly told to vote a certain way.
I confess one Liberal member voted with us on a number of these. Consistently he asked his own colleagues for an explanation to refute the apparent reasonableness of some of our amendments, yet almost without exception our questions were met with blank stares and stoney silence. I suppose when the government has a majority in Parliament, it does not have to explain its actions or defend its decisions. It can do whatever it wants in the hope that constituents will have forgotten by the time the next election comes around.
I want to speak for a moment about clause 56 which stipulates the criteria for determining compensation, including the $7 million cap. I think that cap is very unfair. We had proposed a cap of $25 million. I will leave it to subsequent speakers to deal with that. However, I move:
That the motion be amended by deleting all the words after the word “That” and substituting the following therefore:
Bill C-6, an act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts, be not now read a third time, but be referred back to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources for the purpose of reconsidering clauses 30, 32 and 35 with the view to making the claims negotiation process faster by, among other things, setting timelines for each step of the process.
Specific Claims Resolution Act
The Acting Speaker (Ms. Bakopanos)
The amendment is in order.
Statements By Members
Rob Merrifield Yellowhead, AB
Madam Speaker, Wednesday's health accord represents a commendable start to improving health care in Canada. There is some confusion about the money because the Prime Minister is good at inflating the numbers, but the first ministers agreed with the deal.
Now, it is up to all parties to meet their commitments, work together, and improve health care for all Canadians. It is time for the squabbling to be put behind us and to focus on the needs of all Canadians.
There is much in the accord that the Canadian Alliance called for. We called for flexibility in implementing the new programs. We called for restoring funding for the core health services. We called for no restrictions on private delivery within the public system. We called for dedicated health transfers for adding transparency and accountability. We will now be holding the government accountable for the deal that it has signed.
Canadians want to see tangible improvements for frontline health care services, that is, more doctors, nurses, hospital beds, shorter wait times, and wider delivery options.
It is time to put health care on solid footing in the 21st century. That means putting the interests of the patient first.
Chinese New Year
Statements By Members
Sophia Leung Vancouver Kingsway, BC
Madam Speaker, over the last two weeks I have had the opportunity to attend many Chinese New Year's celebrations in British Columbia and Alberta. As the third largest ethnic group with over one million Chinese Canadians, Chinese New Year has become a major celebration for many Canadians.
I want to congratulate groups such as the Chinese Benevolent Association of Vancouver, Chinese Culture Centre of Vancouver, Vancouver Chinatown Merchants Association, SUCCESS, and the Taiwan Chamber of Commerce in B.C., just to name a few, for helping Canadians celebrate this important holiday in Chinese culture.
I would also like to extend greetings to all Canadians for a healthy and successful year of the ram.
Statements By Members
John Maloney Erie—Lincoln, ON
Madam Speaker, the Governments of Canada and Ontario announced the allocation of 3,200 units for low to moderate income residents in 12 municipalities under the community rental housing program. The units were distributed to municipalities with the greatest need for affordable housing under the first phase of the Canada/Ontario affordable housing program agreement.
The affordable housing program will provide $489.42 million over the next five years to help increase the supply of much needed affordable housing in the province. Government of Canada funding of $244.72 million, together with matching contributions from the Government of Ontario, municipalities, and other private and non-private partners will help create an estimated 10,500 affordable housing units. All governments, federal, provincial and municipal, must work together to encourage investment in affordable housing.
I strongly urge the Minister of Finance and cabinet to support the extension of the residential rehabilitation assistance program, RRAP, and the supporting communities partnership initiative, SCPI, as well as to continue funding commitments for affordable housing.
Statements By Members
Tony Tirabassi Niagara Centre, ON
Madam Speaker, I am pleased to rise today to congratulate my constituent, Dorothy Wetherald Rungeling, for being named a Member of the Order of Canada.
Once billed as “Canada's Flying Housewife”, Dorothy dared to challenge convention and secured a place in aviation history. From her base at the Welland airport she earned her pilot's licence in 1949, her commercial licence in 1951, her instructor's certification in 1953, and her senior commercial pilot's licence in 1954.
To this day she is one of only three women in Canada to have accomplished this combination of feats. She also became the first Canadian woman to conduct a solo helicopter flight. The pursuit of her life long passion attracted worldwide attention as she competed in national and international air races.
Now in her nineties she remains active as a writer and instructor of computer skills to senior citizens. I wish to congratulate Dorothy.
National Library of Canada
Statements By Members
Mac Harb Ottawa Centre, ON
Madam Speaker, a book provides a refuge for the soul of the reader; a library a refuge for the soul of a country. The National Library of Canada, the soul of our country, is celebrating its 50th anniversary this year.
Since 1953 the library has brought together the needs and interests of Canadians, their culture, their heritage, and their understanding of Canada's place in the world.
Fifty years later the government has announced its intention to provide Canadians with even better access to their history. The new institutions, the Library and Archives Canada, will combine these two great institutions and stand out as a world class agency dedicated to the preservation of our culture.
Queen's Jubilee Medal
Statements By Members
Deepak Obhrai Calgary East, AB
Mr. Speaker, I would like to congratulate the recipients of the Queen's Jubilee Medal awarded throughout Canada and particularly in my constituency of Calgary East.
We co-hosted an event with four other constituencies and the Hon. Lieutenant Governor Lois E. Hole attended to present medals to extraordinary Canadians who, in their own way, have made a valuable and outstanding contribution to both community and country.
I would like to congratulate: Raghbir Basati, Surendra Bhandari, Fariborz Birjandian, Chuck Blanchard, Gita Boyd, Pradeep Charan, Ray Clark, Dinesh Dattani, Michael Detheridge, Vinay Dey, Titus Matthews, Ed McNally, Krishna Naicker, Michael Pearson, Prabhudas Ruparell, Ian Seright, Kumar Sharma, Abbimanyu Singh, Ajit Singh, Gabrielle Stapleton, Tishma Taneja, Rufo “Tigs” Tidalgo, Anil Tiwari, Manhar Verma and Neville Wells.
Black History Month
Statements By Members
February 7th, 2003 / 11:05 a.m.
Gurbax Malhi Bramalea—Gore—Malton—Springdale, ON
Mr. Speaker, Black History Month is dedicated to the recognition, learning, and celebration of black history in North America.
In 1995 the Government of Canada declared February to be Black History Month. This gives us the opportunity to celebrate cultural, social, economic, and political contributions of blacks to North America. I am pleased that in my riding of Bramalea—Gore—Malton—Springdale the Malton Black Development Association will be holdings its annual dinner to honour the many young people who will receive scholarship money for excelling at education and athletics.
I would especially like to acknowledge the ongoing efforts of all the organizers of this annual event who have made it a success for more than 20 years.
Riding of Jonquière
Statements By Members
Jocelyne Girard-Bujold Jonquière, QC
Mr. Speaker, last Friday, the Alumiform company, in my riding, announced a new expansion plan that will create 50 new jobs.
Canada Economic Development for Quebec Regions has invested $2.9 million in this project. However, once again, this loan was announced by the Secretary of State responsible for Canada Economic Development and by the member for Chicoutimi—Le Fjord.
Since I am the member of such a flourishing riding where it rains grants, I can only be pleased. I thank the member for Chicoutimi—Le Fjord for announcing the assistance for my riding on my behalf, even if everyone knows that he has nothing to do with promoting these causes.
This way, I can listen in person to my constituents' concerns, serve them in Parliament and defend their interests, their causes and their ideas, particularly with regard to the war against Iraq.
I thank the member for Chicoutimi—Le Fjord. All members dream of having a press secretary like him at their service.
International Development Week
Statements By Members
André Harvey Chicoutimi—Le Fjord, QC
Mr. Speaker, yesterday, as part of the activities for International Development Week 2003, the Minister for International Cooperation launched a national contest for young people between the ages of 14 and 18, sponsored by CIDA and called Butterfly 208.
This contest gives young people the chance to think about ways to do something about poverty and injustice in some of the poorest countries in the world.
Yesterday, roughly one hundred Ottawa school children took part in a forum to launch the contest, which young people everywhere are strongly encouraged to participate in. They can submit an essay or an art entry on themes such as child protection, AIDS awareness, or education.
I invite all Canadians to encourage young people they know to participate in Butterfly 208 and help change the lives of others for the better.
Species at Risk
Statements By Members
Philip Mayfield Cariboo—Chilcotin, BC
Mr. Speaker, the new species at risk law is already, even before it is proclaimed, unnecessarily throwing some British Columbians out of work.
Healthy and growing caribou herds in the Itcha Ilgatchuz Mountains in western B.C. have been lumped into the same eco-province as the vulnerable caribou herd in the Cariboo Mountains 500 kilometres to the east and with another herd in Alberta. What this means is that guide outfitters have been told there is no work for them and also, planned establishment of new herds in the East Kootenays using this healthy stock have been stopped.
This heavy handedness has occurred despite years of success by wildlife biologists, logging companies, guide outfitters and private citizens to enhance this western herd. This new law will come into effect in June. Therefore, any exemptions have to made now, even though letters have been sent to the guides telling them there will be no work this fall.
This is so typical of the government. Already it cannot tell the difference between its own listing of endangered species and it has no idea of how to effectively enforce the law that it has made.