Indigenous and Northern Affairs committee  I'm certainly not going to endorse the idea that we have legislatively based entrenched racism. What we have in my view is the colonial legacy of racism that has produced the reserve system and has thoroughly marginalized indigenous peoples. Indigenous peoples as individual Canadians have the same rights as everybody else, so where is your race-based legislation that says any differently?

Indigenous and Northern Affairs committee  It would start, in my view, with re-empowering the indigenous nations and getting out from under this idea that a band is a nation. The term “first nation” is a conflation of the idea of an indigenous nation into something that the government created, but of course it's politically correct.

Indigenous and Northern Affairs committee  There are around 68 that are active. The 90 include cases where there have been decisions one way or the other. The difficulty is accessibility to the tribunal. If we cannot get into negotiation and mediation, then every claim is going to have to run the whole course. It's turned out that this costs a lot of money, and the funding isn't there for it.

Indigenous and Northern Affairs committee  You're getting me into a dangerous area for a judge, but I could retire any time, so you can always take a little risk. With one qualification, I would support that idea. The qualification, however, is that if governments adopt UNDRIP as a framework, at some point they're going to have to deal with the question of free, prior, and informed consent.

Indigenous and Northern Affairs committee  Yes.

Indigenous and Northern Affairs committee  We're going to lose a couple of members due to people hitting the magic age when judges get the boot.

Indigenous and Northern Affairs committee  I think we're going to get at least two new members in short order, one of whom would be appointed on terms that could address the succession issue. We have an existing member from the Quebec court who's younger, and I'm hoping that Justice Mayer will re-enlist. I think the succession question is going to be capable of being addressed.

Indigenous and Northern Affairs committee  Unfortunately, sitting back here, I couldn't hear much of what was said. My hearing isn't what it once was, so I'm not too sure that I can respond to that. What I will say is that I've heard that where treaties have been established—even modern treaties—issues are always coming up, particularly around budget funding time, over what the obligation is.

Indigenous and Northern Affairs committee  They shouldn't wallow around talking to each other. They should just get it done.

Indigenous and Northern Affairs committee  Well, we've raised this with the advisory committee. We did that a couple of years back, but for whatever reason, the message seemed to be from the AFN that they were nervous that this sort of process would somehow work in favour of the crown, so we backed off from that. We've recently met with the advisory committee and, out of that, we are developing a rule for consideration that would provide for early assessment, mini-trials, and non-binding opinions, so it's in the works.

Indigenous and Northern Affairs committee  First, you have judges. Members of the tribunal have to be superior court judges. That deals with the first concern. If people don't accept that because members are judges they're impartial, there's nothing that can be done about that.

Indigenous and Northern Affairs committee  In terms of support of the tribunal, we have the funding, and I don't have any reason to think we won't continue to have it. I don't like having been thrust under the Administrative Tribunals Support Service of Canada, because it could raise a question of institutional bias, but so far, so good.

Indigenous and Northern Affairs committee  Well, it's pretty much exactly where it was. I don't want to retire, but I have three years left in my term and I'm going to have to retire. My concern is that it takes a while to really develop a successor. Here, we come back to a problem around the members being judges; members should be judges.

Indigenous and Northern Affairs committee  You can't have a negotiation without both parties buying in. If the starting point is “no negotiation because the minister has rejected the claim and that's why we're here”, there's nothing we can really do to speed up the process before us. I shouldn't say there's nothing. If we were to provide early assessments—mini-trials with non-binding opinions—the process could be accelerated.

Indigenous and Northern Affairs committee  If you lose that, you're really lost, aren't you? Claims come to us that have been rejected by the minister or that have been in negotiation for three years without an outcome. In answer to the question of whether there is an openness to negotiation, because the act seems to contemplate that—even mediation—they say, no, why would we negotiate?