Specific Claims Resolution Act

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

This bill was last introduced in the 37th Parliament, 1st Session, which ended in September 2002.

Sponsor

Bob Nault  Liberal

Status

Not active, as of June 19, 2002
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

May 23rd, 2013 / 10:05 a.m.
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NDP

Peggy Nash NDP Parkdale—High Park, ON

Thank you, Mr. Chair.

I'll read the motion first:

That the Standing Committee on Finance immediately undertake a study on the impact of Part 3 Division 17 of Bill C-60 on the independence of the Bank of Canada with respect to its setting of the nation’s monetary policy and its economic research activities.

In light of the discussion we've had today, Mr. Chair, our concern is that part 3, division 17 of Bill C-60 could undermine the independence of the Bank of Canada—

First Nations Governance Review ActPrivate Members' Business

June 20th, 2002 / 5:35 p.m.
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Canadian Alliance

Dave Chatters Canadian Alliance Athabasca, AB

Mr. Speaker, I did not originally intend to speak to the bill, but some of the things I heard have motivated me to speak in support of my colleague. I was disturbed by the comments made by the member for Yukon and his proposal that Bill C-60 would solve all the problems we face with accountability in aboriginal communities.

I concur with my two colleagues that many aboriginal bands are run well and are accountable to their members. I have had many of the same experiences as my colleague for Wild Rose. I have accompanied band members to the RCMP commercial crimes unit and to the Department of Indian Affairs and Northern Development asking for help to deal with their problems. Both of those institutions either could not or would not provide the assistance we were looking for.

Bill C-60 proposes that the band appoint an ombudsman so people in the band would be able to go to this ombudsman if they have problems with what the chief and council are doing and need to appeal. That is ludicrous.

Those of us who have lived our lives among Indian bands know that an Indian band is a tribe or an extended family. Most individuals living on the reserve are related to each other. If there is a complaint against the chief or council for some action taken on the reserve and someone goes to the band ombudsman, that ombudsman is likely to be a brother, son, uncle or cousin of the chief, or one of the councillors. Does that give anybody confidence that the problem will be dealt with?

I am disappointed because the minister of Indian affairs promised that his legislation would deal with problems we have been bringing to him for years. The legislation has no enforcement mechanism to deal with the problems we are talking about. The only answer is an independent arm's-length ombudsman who has some power to investigate and take action if there is unethical or illegal behaviour. That is the only way those problems will be solved. That is the only way to get accountability, either political or financial.

I am also disappointed with the comments made by the member for Yukon because he knows better. We will deal with these issues when we get into Bill C-60. At this time I support the proposal put forward by the member for Wild Rose.

Specific Claims Resolution ActGovernment Orders

June 19th, 2002 / 3 p.m.
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The Speaker

Order, please. It being 3 p.m. the House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-60.

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Specific Claims Resolution ActGovernment Orders

June 18th, 2002 / 5:10 p.m.
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Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Mr. Speaker, it is my understanding that the purpose of Bill C-60 is to create an independent centre that would provide for the filing, negotiation and resolution of specific claims.

It has been a longstanding opinion of a number of people throughout the country that these claims should be dealt with in a speedy fashion and in a fashion that will once and for all resolve the issues that surround the purpose of settling these claims.

The Canadian Alliance has strongly supported getting these claims settled in the best and speediest way possible. However I am not convinced in the slightest that this particular bill would achieve that. It seems like it is pretending to address the problems but I really wonder exactly where this will end up in the long run if it is approved. I am sure it will be approved because once again we have some legislation brought forward by a majority government and in this country the majority government always has its way.

I hope government members have listened and will continue to listen to the debate that is going on and that they will take into consideration some of the things that are concerning a number of people.

Although we are moving in a direction that is supposed to resolve long lasting problems, problems on reserves go on every day according to the individual people with whom I have met. Again today I received an e-mail from a fellow by the name of Keith Chiefmoon. Keith has written to the minister directly requesting immediate help for a flooding situation in Stand Off, Alberta. The situation has become desperate. The reserve has lost its drinking water and there are problems with sewage.

We need to learn to respond to these individual needs because the tragedies and grievances that these people are suffering on these reserves are absolutely pathetic in many instances. We have continued to lag in addressing the problems that surround the reserve issues to the point where even the United Nations has recognized most of the reserves to be no better than other countries in the world that have been classified as third world conditions.

Some of the people on the reserves are living in squalor and are struggling with difficulties simply because of the lack of accountability and lack of concern for anything other than regulations that enhance the needs of a few but do not look after the needs of the many.

I wish this legislation, which would create a centre to deal with land claims, would address the real down to earth problems. We need to give assurances to the many mothers and grandmothers on the reserves, who have contacted me and who I have met with personally in my travels across the country over the years, that their families can grow and achieve the prosperity that so many Canadians enjoy. They want to be part of that through whatever process or means we try to achieve. We need to give them some hope, which they do not have today, and give them some help which they feel is not available. They do not know where to turn.

I have met many times with ministers of Indian affairs over the years, including the present minister and the one prior to him. It just does not seem to happen that we address the real issues at the heart of the difficulties that surround the people who are affected. We seem to concentrate on the larger picture of establishing claims and making changes to the Indian Act.

These are the things we must address and look to in the future. We are putting the cart before the horse when we do not start at the bottom where the problems exist. The problems are with individuals in many of our reserves across the country.

I do not know how many times individuals have contacted me and said that they do not know who to turn to. If they go to their chiefs and councils regarding the issues that mean the most to them they are told to go home and that they will be looked after, but they never are. If they continue to make a fuss, then there are reprisals against them. There are problems that come their way because they speak out too often. They are told to go to the indian affairs department. I attended many meetings with them in Edmonton.

These people have pleaded with the indian affairs department to help them in their dire situations and the department's only answer is that it does not get involved with these problems. It is an internal problem. They are told to take it to their chief and council. Around and around it goes. It seems that is the way it has been going for years and years.

I see that a committee would be struck. There would be a centre and it would create a commission or tribunal. All the commissioners and adjudicators would be appointed by the Prime Minister. That bothers me right from the start. He has not had much luck in his appointments over the last few years that I could account for.

The claims process would then proceed as follows. There would be an intake and a preparatory stage. The first nations would submit claims to the commission which would arrange research funding for the first nations. It would notify interested parties of the claim and would facilitate preparatory meetings.

Exactly who would be involved in those preparatory meetings? Would it be the hundreds of grassroots natives who are constantly crying out to the minister and the government, who have been crying out since they were young and are now elders in their communities? Would they have a voice? Would they be heard with regard to where this would all lead? Would it address the cares and problems that these mothers and grandmothers in particular are trying to point out day in and day out through their many efforts? Or would it go to the upper echelon authorities?

I look at the validity stage where the crown would decide whether or not to accept the claim. If the crown were to refuse the claim, then the first nations could ask for a dispute resolution led by that commission. All these other people would sit on the sidelines while the elite would sort out the problems of settling these claims. Where are the first nations voices in all of this?

What about the taxpayer? I have never met any taxpayers in this country who are not willing to help the situation that exists in our country with regard to the livelihood and welfare of our native people. If only they knew where their dollars were going and what they were going to achieve.

Year after year the auditor general reports to the government about how it is failing to address the seriousness of the problems that exist in the hearts and minds of these people and their lives. Taxpayers become disillusioned when they look at millions and billions of dollars that goes along with running the indian affairs department. Yet they see their neighbours on reserves living in third world squalor conditions.

This is all fine and wonderful. We earn triple digit figures in salaries and all the big shots throughout the country will come together and make these great settlements, but who will truly benefit? Will there be any guarantee from the commission that at last the people who have been suffering for years on the reserves will have some relief? Will the taxpayers of Canada for once in a number of years say their dollars were well spent and that the Government of Canada and first nations did a good job? When will that day come? Will it be because of Bill C-60 or Bill C-61? I think not, not until there is a willingness to accept the challenge of taking care of our citizens, especially the aboriginals of Canada.

Specific Claims Resolution ActGovernment Orders

June 18th, 2002 / 4:40 p.m.
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Canadian Alliance

Inky Mark Canadian Alliance Dauphin—Swan River, MB

Mr. Speaker, I am pleased to take part in the debate on Bill C-60, the specific claims resolution act, on second reading, representing the PC Party of Canada as an independent Conservative member of the House. It is rather unusual to debate two bills on aboriginal affairs back to back. As we know, yesterday we debated the first nations governance act, Bill C-61.

I made reference during yesterday's debate on Bill C-61 to the fact that the member for Winnipeg Centre made a recommendation to the minister that aboriginal representation be included during the hearing process of the standing committee. I can certainly say at this time that the PC Party of Canada supports that recommendation. In fact, we would suggest that the recommendation be extended to Bill C-60 as well.

We all know that the land claims issue in Canada has been longstanding and has not been easy. Aboriginal treaties and land claims are part of Canada's history. I believe that Canadians want these outstanding land claims to be resolved in an expedient manner. It is in the best interests of all Canadians, including aboriginal Canadians. Bill C-60, in the PC Party's opinion, is a progressive step.

My first involvement with land claims was in 1995 with the Rolling River first nations band in my riding of Dauphin--Swan River. The then chief, Dennis Whitebird, who is now the grand chief in Manitoba, was one of the leaders involved in the entitlement land claims initiative in Manitoba. As the mayor at the time I learned a lot about land claims through the process and supported the Manitoba entitlement claim initiative. In fact, Dauphin--Swan River is fortunate to have 13 first nation communities as well as 88 other municipalities.

The land claims process, as I found out, is not as simple as it sounds. At this point I would like to relate some of the basic information that I had to learn to understand and I believe it would be in the interest of the viewers following this debate.

First nations in Canada have signed agreements with the crown that are called treaties. There are three groups of treaties: pre-Confederation treaties, numbered treaties, and modern treaties, which we designate as land claims. In July 1817 the Selkirk Treaty in my own province of Manitoba was signed by the Saulteaux and the Cree First Nations and the Government of Canada.

The pre-Confederation treaties include King George III's royal proclamation of 1763. Those treaties were negotiated in Canada before Confederation. Also included are the Robinson Treaty of 1850, Treaty No. 13, and the additions to the Robinson Treaty which are known as Treaty No. 12 and Treaty No. 14. Numbered treaties are the treaties numbered 1 to 11, which were negotiated between 1871 and 1877 with first nations people across Canada.

The third group of treaties is known as the modern treaties, or land claims as we know them today, which consist of land claims negotiated according to Canada's land claims policy established in 1973. The land claims policy recognizes two broad classes of claims: comprehensive claims and specific claims.

I will explain briefly what comprehensive claims are. Comprehensive claims are based on the assertion of continuing aboriginal title to lands and natural resources.

Comprehensive claim settlements are negotiated to clarify the rights of aboriginal groups to lands and resources in a manner that will facilitate their economic growth and self-sufficiency. Settlements are intended to ensure that the interests of aboriginal groups in resource management and environmental protection are recognized and that claimants share in the benefits of development.

These rights and benefits usually include: full ownership of certain lands in the area covered by the settlement; guaranteed wildlife harvesting rights, which I will come back to later and discuss in a little more depth; guaranteed participation in land, water, wildlife and environmental management throughout the settlement area; financial compensation; resource revenue sharing; specific measures to stimulate economic development; and last, a role in management of heritage resources and parks in the settlement area.

I would like to speak about how guaranteed wildlife harvesting rights has impacted both aboriginal and non-aboriginal individuals in Dauphin--Swan River this past winter.

No one disagrees that aboriginal Canadians have the right to fish and hunt on a sustenance level. In real terms, sustenance means putting food on the table, in the absence of aboriginal commercial rights to fish.

This past winter in Dauphin--Swan River we saw a small group of aboriginal net fishers net fishing on an unlimited basis in stocked lakes under the guise of sustenance. That is wrong. This illegal activity is not supported even by aboriginal people. Most of this illegal catch ended up on the commercial market through the Manitoba freshwater fish marketing board, which is a creature of the federal government.

Unfortunately this issue is still unresolved. Manitoba has no provincial regulations pertaining to unlimited net fishing by aboriginals. In fact, the Manitoba conservation minister is himself an aboriginal Canadian. He wants band bylaws on resource management to be applicable outside the boundaries of the reserve. This goes against the Sparrow decision.

The issue of unlimited net fishing by aboriginals in stocked lakes will not go away unless all stakeholders in Manitoba meet and come up with a solution. The provincial minister currently picks and chooses who should sit at the table. If humans do not agree, fish and game will be the big losers. We will all lose if we lose our wildlife resources.

Most specific claims are related to land other than a loss of reserve lands without lawful surrender by the band concerned or the government's failure to pay compensation where lands were taken with legal authority. Other specific claims arise with respect to the administration of Indian moneys and other assets such as timber and mineral rights.

This brings me to Bill C-60 dealing with specific claims. Before I talk about the bill I would like to put forth the Progressive Conservative position. We would respond energetically to the co-operative settlement of outstanding land and other claims with aboriginal people ensuring that they have full opportunity to grow, develop and prosper within Canada.

The position of the Progressive Conservative Party differs from the Liberals in that we would work with aboriginal people to expressly define aboriginal rights as a matter of public policy in a non-confrontational balance and interest based negotiations. We believe that the ineffective, paternalistic, colonial approach of the Indian Act must give way to greater self-reliance through effective education, economic development, social justice and local control.

The PC position is very clear. We do not share the position of another party in the House that believes special rights for any targeted racial group is contrary to the principle of equality and that they should be indistinguishable in law and treatment from other Canadians.

The minister said in committee that something was wrong when legal fees outstripped settlement targets. In principle the PC Party supports Bill C-60. On the matter of litigation we support the policy that Canada will not entertain a claim or participate in negotiations if first nations have active litigation on the claim.

The existing claims process has been criticized by many over the years. These are some of the criticisms. This was a backroom process hidden from the public. There is a lack of fairness and transparency in the area of research and assessment. It does not provide a level playing field for negotiations. Finally, there is a lack of independence and partiality and accountability. The new bill, Bill C-60, hopefully will address these concerns.

Canada's specific claims policy was first established in 1973. Over the years this policy has been amended several times to reflect the evolving legal and policy environment. Despite its shortcomings, it has settled many claims. In fact, 232 claims were settled, totalling $1.2 billion, averaging $5.3 million per claim and adding 16,000 square kilometres to the reserve land base. Approximately 580 claims, with an estimated contingent liability of $2 billion, have been added to the Indian and Northern Affairs Canada inventory of unsettled claims.

Calls for the government to establish an independent claims body have been numerous over four decades by three parliamentary committees: the parliamentary joint committee 1946-48; the joint committee of 1959-1961; and the Commons standing committee on aboriginal affairs in 1991. There was also draft legislation introduced twice in the House in 1963 and 1965. They all failed.

Three independent reports made similar recommendations for an independent claims body: Gérard La Forest in 1981; the Canadian Bar Association in 1987; and the royal commission on aboriginal peoples in 1995. There are other advocates who recommended the same point of view: the Indian Specific Claims Commission in 1991 and the first nations Canada joint task force created in 1996.

All stakeholders agree that establishment of this independent body is long overdue. The centrepiece of Bill C-60 is the establishment in law of the Canadian centre for the independent resolution of first nations specific claims. It will be comprised of a commission division to facilitate the negotiation of claims settlements between the parties by providing a range of dispute resolution processes and a tribunal division as a last recourse to adjudicate the validity of and compensation for claims where negotiations and dispute resolution processes have proved unsuccessful.

The commission and the tribunal will establish neutral arm's length claim facilitation and adjudication bodies, enhance transparency, remove the funding of first nations to participate in specific claims process from the minister's jurisdiction, simplify the existing structure and bring greater rigour to the process and provide an effective alternative to litigating specific claims, which are expensive for both parties, by actively promoting negotiated settlements and/or exercising its authority to render binding decisions.

One area in Bill C-60 which calls for debate is the fear of patronage appointments process. Why does the government get to pick all the commissioners in both divisions? How can it operate at arm's length and be impartial and away from political influence if this occurs? Does the aboriginal community have representation on those commissions?

June 21 is an important day as we celebrate National Aboriginal Day. Aboriginal history is a part of this country's history. How many Canadians know that during the war of 1812-1814 the aboriginals in central Canada, through their efforts in aiding the British, basically prevented the takeover of this country by the Americans?

Two weeks ago I had the privilege to help open the first annual parkland aboriginal festival in Dauphin, Manitoba. I am sure the festival will become an annual event and will continue for many years to come. I applaud the Dauphin Friendship Centre for taking the initiative to organize the event, with the full support of the aboriginal community.

In closing, Bill C-60 is needed. The PC Party supports the bill in principle. I look forward to the upcoming hearings by the standing committee.

Specific Claims Resolution ActGovernment Orders

June 18th, 2002 / 4:15 p.m.
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NDP

Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, I am pleased to have the opportunity to join the debate on Bill C-60. I want to thank my colleague from the Bloc Quebecois for his thoughtful remarks. I find I can associate myself with his points of view quite readily. We have obviously come to similar conclusions and apprehensions about some of the shortcomings or things yet to be explained or clarified in the bill.

It has been interesting to research this long awaited bill that will be the impetus of the creation of the independent claims body. We feel that this is a progressive move. It would expedite and alleviate some of the backlog that exists in the specific claims area. The research we have been doing has been instructive, to me at least, in many areas. I would like to outline some of the things we found interesting, possibly to help people understand this debate.

There are two types of Indian land claims. I am not sure that is clear in the general public's mind. I am not sure it is even clear in the minds of some of the other speakers from other parties I have heard, the Bloc Quebecois being the exception.

There are comprehensive claims, which arise in areas where treaties have not been made between Canada and first nations to address and reconcile issues of existing aboriginal title. Then there are specific claims that arise where Canada has failed to fulfill the terms of treaties or its legal obligations to properly administer and protect first nations land or other assets, usually meaning finances.

Specific claims come from laws and agreements respecting Indian lands dating back to 1763. By virtue of the royal proclamation of 1763 the crown proclaimed that:

“only the Crown could acquire land from the Indian Nations of North America”; and, “the Crown would make arrangements with Indian Nations with respect to land to protect them from great frauds and abuses...”

These colonial laws and practices were the foundation for the crown's policy of making treaties with Indian nations for peaceful co-existence and for land for incoming immigrants. Canada has the constitutional responsibility therefore for Indians and lands reserved for Indians, and has administered and managed Indian land and assets under the Indian Act since the 1870s. It is important to note that the royal proclamation did not create rights. It recognized property and land rights of Indian nations and it set up a process to acquire lands from Indian nations.

Specific claims occur when Canada fails to set aside enough land under treaties. That is one example where there might be a specific claim file. A specific claim may be filed where reserve land was taken away illegally or in contravention of the laws or in contravention of certain treaties. A specific claim could also occur where Canada has a responsibility for managing first nations lands and assets but fails to adequately protect those assets. Those are the circumstances under which we find ourselves at the wrong end of a specific claim by a first nation aboriginal people.

Specific claims are brought against the Government of Canada for failing to meet its legal obligations. Specific claims are legally enforceable because they arise from duties and obligations that Canada has in relation to first nations treaty and property rights. The claims are legal liabilities which remain until they are settled by the Government of Canada. These are unfunded liabilities that Canada is owing. Canada recognizes that as soon as these claims are validated it must settle them. The conflict occurs when Canada finds itself in a conflict of interest situation. I will speak more about that later because the very claims that are being made against the Government of Canada are being adjudicated by the Government of Canada. There is room for conflict, as anyone can plainly see.

It was not until the early 1970s that first nations were able to examine why their lands and assets were lost under the administration of the federal government. Part of the reason these claims were not brought forward earlier was due to a clause in the Indian Act which prohibited Indians from making claims or seeking legal advice to make claims. That clause was repealed in 1952. From the 1920s until 1952 aboriginal people were prohibited from this by law, and in fact lawyers were prohibited by law from taking money from aboriginal people to represent their views in a land claim issue. The practice was outlawed and aboriginal people were denied the recourse of the courts.

One might wonder how the existing specific claims policy worked to date. That is why we find ourselves here today trying to find another conflict resolution process because the existing specific claims policy has been slow, inefficient, ineffective and costly. The costs of negotiating claims sometimes equals the cost of the settlement. Claims are taking as long as 7 to 10 years to finalize. First nations believe that the claims process should be fair and impartial first of all, and that it should be expedited because, as the old saying goes, justice delayed is justice denied.

The idea of an independent body has been called for since the 1940s. In recent history it was recommended by the aboriginal justice inquiry in Manitoba and the Royal Commission on Aboriginal People in 1996. The Canadian Bar Association has been calling for this, and even the standing committee on aboriginal affairs, on which I sit, have all recommended that an impartial and independent body to deal with specific claims be established forthwith.

As a result of the Oka crisis, which revolved around a land claim, the federal government established the Indian Specific Claims Commission in 1992 as a temporary and interim body to hear appeals on claims that were rejected by Canada. However the Indian Specific Claims Commission can only make recommendations to Canada and therein lies the conflict of interest, because the Government of Canada ultimately will decide the merits of the case. A recommendation can come from the specific claims commission and the government will decide whether to pay out or not.

The minister of Indian and northern affairs at that time, the hon. Tom Siddon, publicly stated that the interim body would provide a degree of fairness under the existing policy. First nations of Canada sought agreement on improvements to federal policy but he expressed his concern as to how independent and how effective it could be.

First nations estimate that at the current rate of settling claims under the Indian Specific Claims Commission, it would take 150 years or more to settle the outstanding backlog. Clearly something must be done. The federal government has a backlog of claims dating back to the early 1970s. We have heard the figure of 480 outstanding claims used in the House of Commons today and there are another 60 plus claims with the Indian Claims Commission.

The Indian Claims Commission only accepts claims that have been rejected by the specific claims branch. For the past 12 years first nations have worked jointly with Canada and have waited for a collaborated effort to dialogue with the federal government to resolve these outstanding debts. The cost of settling claims increases every year. The longer it takes to settle a claim, the more it costs.

Since 1997 the Joint First Nations-Canada Task Force, the JTF on claims policy, has been working to develop joint recommendations on claims policy reform. The JTF has developed a model for an independent claims body through positive interaction and dialogue that it believed was a fair, effective and impartial way to settle specific claims in Canada.

The Government of Canada committed itself to work co-operatively with first nations in developing this kind of a fair and independent claims resolutions process. This type of process followed up on the federal government's red book promises and action policy “Gathering Strength--Canada's Aboriginal Action Plan”. The commitment then was to work with first nations to design the new independent claims body.

The federal government did not respond to the joint task force report for 18 months. When it did respond it was with a counter proposal to establish the independent claims body through legislation without any input at all from first nations. The federal counter proposal would appear to incorporate some of the basic elements of the JTF model, such as the commission and a tribunal, but there are key omissions, limitations and voids within the proposed legislation now that differ greatly from the recommendations of the joint task force which is the fair way to put together agreements like this.

One of the specific differences from the joint task force and the actual legislation that concerns the parties now is the arbitrary cap of $7 million, that no claim greater than $7 million can be submitted to this process. The problem is that many of these claims are over $7 million. Once someone stipulates this set of rules and agrees to put his or her claim through this mediation process, that individual forgoes the right to the avenue of recourse through the courts at least while it is in the process.

The unfairness comes in the following way. What if the claim is $8 million? There is a choice. One could fight it through the courts for six, seven, eight, ten years or one could avail oneself of the expedited mediation process of the independent claims body and settle for a maximum of $7 million. That first nation would have to make a judgment call and leave money on the table because of this arbitrary ceiling of $7 million.

It was not clear until recently just how this cap would operate, whether it would apply to the ability of the tribunal to make recommendations on the validity of claims or whether the cap would include outstanding negotiation costs and loans, et cetera. We now know that the legal and negotiation costs would become part of that total $7 million cap. As we heard earlier sometimes the cost of negotiation is equal to the settlement. First nations could be working on repaying an outstanding loan or debt who might also have $2 million, $3 million, $5 million worth of legal bills and the total maximum claim would be $7 million. That would be deducted from their maximum claim. That is a real concern.

We are concerned that even with an expedited process without the resources to deal with this huge backlog of claims, no real progress would be made. We do not see any major increase in the budget for settlements. There was concern over the operations budget and the continuance of loans funding to finance first nations participation in the process. Do we know that first nations would still qualify for loans so that they can even represent themselves during this new independent claims process? That is yet to be determined.

The one thing all parties agree on is the appointment process. The appointment of people to the commission or the tribunal would be a crown prerogative and not a joint process as promised. This is one of the key recommendations of the joint task force. To be an independent body it should not be made up of patronage appointments by the ruling party, the government. That is what we are faced with today and that does call into question the truly independent nature of this independent claims body.

We are concerned that the fear of patronage appointments would jeopardize the effectiveness of this new body. The cap of $7 million would exclude large claims and may force claims that are right about that level to accept the settlement at a value less than what they rightfully deserve because the claimants cannot afford to keep fighting a long and exhaustive legal battle.

We are critical that there is no significant increase in the budget for the new processing of claims and settlements. We believe there is a question of the true independent nature of the claims body and we believe there is a risk of conflict of interest because we still have the Government of Canada hearing the claim against the Government of Canada.

Surely there is a bias there. It is not independent. There is no commitment to first nations that they will have a role to play in the three year review. The bill calls for a three year review to measure the effectiveness of this new body, but the first nations will have no input so the government will be auditing itself. Again it is a problem of a conflict of interest when the government is charged with the responsibility of measuring how well it did. That can get politicized.

In our initial review of Bill C-60 we have identified a number of departures from the 1998 joint task force report, which may compromise the ability of the new body to assist in resolving claims in a fair and impartial manner. Those are some of the concerns.

It is worth looking at what the independent claims body will seek to replace or to act as an alternative to, and that is the Indian Claims Commission. I was sitting in the House of Commons the last time the independent claims commission co-chairs made a presentation of their annual report. It was on May 29, 2001. I would like to briefly visit that to explain some of the points they made.

They raised the issue as background that in 1927 it was an amendment to the Indian Act that made it illegal for any person to accept payment from an aboriginal person for the pursuit of land claims. As I have said, this provision remained in effect until 1951. It was not until 1973 that the decision of the supreme court in regard to Frank Calder of British Columbia confirmed that aboriginal peoples' historic occupation of the land gave rise to legal rights that survived European settlement, thus recognizing the possibility of present day aboriginal rights to land and resources. That ruling prompted the federal government to elaborate a policy to address unsettled land claims, both specific and comprehensive. What a monumental supreme court ruling that was.

The co-chairs of the Indian Claims Commission stated “The specific claims policy has long been subject to criticism for establishing a system in which government rules on the validity of claims against it”. It was a clear-cut case of conflict of interest or at least the possibility and the risk of conflict of interest. In the aftermath of the Oka crisis recommendations regarding land claim reform, the Indian Claims Commission was established by order in council. I want to point that they also make reference to this: the creation of an independent commission with broader powers has also been on the Liberal government's agenda since the 1993 pre-election red book and was a recommendation of the Royal Commission on Aboriginal Peoples.

We have been promised this independent claims body at least since the government took office in 1993. It was in their pre-election red book. It has been a long, painful process waiting for this to take place, and as a previous speaker said, I hope they can settle claims faster than they could live up to their red book promises.

I want to give an example of what types of specific claims have been dealt with by the Indian Claims Commission and what things succeed and what things fail. Specific claims are, as I have mentioned, outstanding lawful obligations owed by the Government of Canada to Indian bands. In general terms, they arise from breaches of treaty, breaches of trust and circumstances such as the theft of land, and flagrant violations of duties of the crown.

Often these are clear-cut cases and litigation should not have to be the only avenue of recourse to get satisfaction on historical facts in many cases. We often will see a well documented historical fact that a certain air force base expanded onto reserve land. The surveyors staked it out and took 200 acres 50 years ago. No one ever resolved these outstanding claims. People have been forced to go to the courts. Surely in cases like that an independent claims body would agree that the grievance is legitimate and should succeed.

For example, the Fort McKay case in 1996 resulted in the reversal of the Government of Canada's policy position with respect to treaty land entitlement, and the prairie land surrenders of the Oliver era are very well known. These are landmark cases, precedent setting cases.

The NDP welcomes the independent claims body with the reservations I have stated, which we will be raising again at committee.

Specific Claims Resolution ActGovernment Orders

June 18th, 2002 / 4:05 p.m.
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Bloc

Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

Mr. Speaker, I am pleased to speak to Bill C-60, An Act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims.

This bill represents a praiseworthy initiative by the government in its relations with the first nations. However, there are rarely roses without thorns. As the minister said in his statement to the press, shortly after tabling the bill last Thursday:

The government made clear commitments in the Speech from the Throne to improve the lives of Aboriginal people by dealing with the grievances from the past, and to equip First Nations people with the tools for a successful future.

This is also a Red Book commitment made by the Prime Minister, and by this government.

Well now, good for them. I would, however, point out that the throne speech to which the minister refers was the one opening the 35th parliament, on January 18, 1994, more than eight years ago. Also, the red book he refers to was presented by the Liberals during the 1993 election campaign—not the campaign of 1997 or 2000, but the one of 1993.

The minister is right to be pleased, because at last, he can rise in this House and announce some government initiative for the benefit of aboriginal people, something very few of his predecessors have been able to do. I am thinking of the Minister of Human Resources Development or the Canadian ambassador to Ireland, Ron Irwin. But never mind, as they say, better late than never.

So, Bill C-60 will create the Canadian Centre for the Independent Resolution of First Nations Specific Claims, a measure that has become necessary, indispensable even, because the federal government has, most obviously, neglected to honour its legal obligations as required by a series of treaties ratified with the first nations.

It is somewhat ironic to see the government creating from scratch a body mandated to repair, or at the very least, arbitrate the injustices committed by it in connection with aboriginal nations.

This is a good initiative, I agree, and the first nations have everything to gain in having an independent body, a tribunal what is more, finally able to decide on their claims, claims the government could leave unresolved as long as it wished.

For the aboriginal people this represents a step forward. Let us hope that the claims brought before this body will be settled diligently and in their best interests. For too long, the first nations have suffered because of Ottawa's laxity and lack of leadership. It is important now to look to the future.

However, I must again call attention to the wait and see attitude of this Liberal government in its relationship with first nations. Indeed, instead of taking action as it promised to do nearly ten years ago, the government preferred to wait and let things drag on, probably with the unspoken and unspeakable intention of seeing the aboriginal nations get fed up and abandon their various claims against it.

I fail to understand why the government would want to stretch the time frame to the limit since its inaction has considerably hampered the development of first nations and its lindifference has made highly critical situations even worse, which is not saying much about a government run by a former Indian affairs minister.

The support of the Bloc Quebecois for the principle of this bill at the second reading stage shows our party's interest in the development of aboriginal communities and the nations to which they belong.

The openness shown by the Bloc Quebecois is based on the fundamental premise that the nations that take part in the dialogue must do it as equals. This kind of dialogue applies to the whole relationship between non aboriginal governments and first nations.

As I have often said, this way of thinking was evident in the negotiations that led to the ratification of the peace of the braves between the Government of Quebec and the Crees of James Bay.

Quebecers know better than anyone else in Canada how important a constructive dialogue with their partners is, and I hope to see all my colleagues in the House adopt this attitude that does credit to Quebecers.

While we discussed what the major thrusts of Bill C-60 should be, its referral to a committee after second reading will promote a most constructive discussion on this bill and, more importantly, will ensure that the bill reflects as closely as possible the fundamental objectives that were set.

Among other things, we will have to give priority to the concerns raised by the Assembly of First Nations, in particular as regards the arm's length nature of the appointment process to the tribunal and the ceiling imposed on the value of the claims that can be submitted to this tribunal.

The Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources will have the opportunity to consult directly with aboriginal nations and with all those who take an interest in this most important issue, and it will propose amendments to the minister, so as to ensure that the legislation achieves its objectives.

Since this is a new and innovative government initiative in the area of aboriginal claims, it is important to ensure that the process is as open as possible. My colleagues on the committee and I are anxious to hear what the leaders of aboriginal communities will have to say, since there are some claims that are critical to the development of their nations.

Also, I do believe and hope that the government will be truly determined to ensure that this bill is passed quickly, because the hopes of a very large number of aboriginals rest on it.

Needless to say, it would be truly be unfortunate if the government used its powers to prorogue the current session at some point during the fall and left first nations out in the cold for long months by letting them down once again with broken promises and failed commitments.

It would be ironic, to say the least, to hear once again the governor general solemnly reaffirm the clear and true will of the government to promote the development of aboriginal communities. These lofty words have been used too often without leading to any action. History must not repeat itself, because this could break the fragile trust that exists between the federal government and aboriginal nations.

Before concluding my remarks, I want to reiterate the support of the Bloc Quebecois for this important bill, and particularly for its impact on the development of first nations.

The Bloc Quebecois is determined to do its utmost to improve this legislation and to have it passed, so as to speed up the settlement of specific claims which, in some cases, have been dragging on for years.

Specific Claims Resolution ActGovernment Orders

June 18th, 2002 / 3:35 p.m.
See context

Canadian Alliance

Brian Pallister Canadian Alliance Portage—Lisgar, MB

Mr. Speaker, I am pleased to add the comments of the Canadian Alliance to the debate on Bill C-60, the specific claims resolution act. We share many of the concerns the minister spoke of earlier. I will outline some of these before the bill proceeds further. I will also highlight our concerns about the way the legislation may or may not work.

First, I will review the basics of the bill. The facilitation of the settlement of specific claims across the country is its stated objective, an objective the Canadian Alliance shares. Bill C-60 would establish a centre for independent resolution of first nations specific claims. The centre would have a commission division and a tribunal division, each with distinct functions. The commission would facilitate negotiations. The tribunal would resolve disputes. The commission would enable the resolution of all claims regardless of value by drawing on the entire range of dispute resolution mechanisms to assist parties to specific claims in reaching final settlements.

In contrast, the adjudicative tribunal would be available to first nations as a last recourse. It would make final binding decisions on the validity of specific claims rejected by Canada and on cash compensation for valid claims up to a maximum of $7 million. Judging from a review of the claims on hand, the majority are below $7 million.

I will share our party's position on these issues with hon. members. It is as follows:

Our position in land claims negotiations will be to ensure respect for existing private property rights, affordable and conclusive settlement of all claims, and an open and transparent process involving all stakeholders.

Unresolved land claims have been an issue between the aboriginal people and governments of our country for many decades. That is too long. It is a complex issue that has been a roadblock to building economies on reserves, a roadblock to building a greater sense of shared citizenship among non-aboriginal and aboriginal Canadians, a roadblock to individual aboriginal Canadians achieving the goals they have for themselves and their families, and in many ways a roadblock to economic development. We are trying to tear the roadblock down.

The government's intentions are valid. However there has been a longstanding corporate culture in governments of Canada under various political parties to delay resolution of these claims. Obstacles have been put in place whether bureaucratic, political or otherwise. At one time Indian bands in Canada were not allowed to use their own resources to pursue resolution of legal claims. As a consequence there is deep distrust between aboriginal leaders and communities and the federal government on this and other issues.

Resolving these claims is in everyone's interest. In this year's estimates alone the government has budgeted $122 million for grants to bands for resolution of specific claims. Let us review how this works. The taxpayer pays taxes to the federal government. The federal government gives some of the taxes to bands in the form of grants so they can work toward the resolution of claims. The bands apply to get the grants. They are given the grants. The bands then use the money to pay lawyers.

This is pretty much where the money goes. Lawyers get it. Lawyers are paid on the basis of how long they work. It is kind of like a taxi. The longer it goes the better it is for the taxi driver. In this case the taxi driver is a lawyer. The system could be seen as a bit biased toward preserving and perpetuating cases rather than resolving them.

That is as problem because it all starts with working people across Canada paying taxes. The taxes go to the government. The government sends them to the Indian bands, not to be used for housing, not to be used for improving the social conditions of reserve residents and not to be used toward any significant and immediate concerns that aboriginal people have expressed to me and many of my colleagues in the many consultations we have had with them. My colleague, the member for Wild Rose, spent a couple of years of his life meeting with aboriginal people, individuals and community leaders across the country. He shared with me the higher priorities of the aboriginal people. If people are having trouble supporting their family they do not care b about tinkering legislators working to resolve these issues.

The fact of the matter is that the two things are related. As long as these issues are not resolve, it is highly unlikely that the kind of economic development we would like to see on reserves and the lifting of those limiting factors that plague so many people who live in isolated aboriginal communities across Canada will be achieved. The two things go together.

We are not just tinkering here when we talk about these things. I understand that my aboriginal friends have higher priorities right now, like feeding their kids, building a better community, dealing with some of the health problems that face their friends and neighbours, and encouraging their young people to avoid a life of crime and to make better choices for themselves in the short and long term. I know they have priorities in the immediate days ahead but this is a topic we cannot avoid dealing with. We have avoided it for too long. We are paying the price today for the inattentiveness of our leaders to deal with these problems in the past.

I share the perspective that the minister expressed earlier. We cannot leave these issues to be solved by our children. That is a very good and valid observation. Our children should not be made to pay the price of our own inattentiveness to these issues today.

We can agree with the government on the need to resolve these issues. We can agree with the government on the need to have a climate of economic and social stability on reserves but we should also recognize that other challenges do exist whether or not we solve these problems. The larger problems must be addressed as well.

In the government's urgent pursuit of aboriginal self-government, as it advances its agenda rapidly forward, what has been the consequence of advancing that agenda? The consequence has been that many bands have been pushed into a situation where they are financially challenged. The instability that results from that is that bands are pushed into third party management situations.

I reference comments made yesterday by one of my colleagues in the NDP who said that the Alliance was excessively concerned with the problems and the failures that face some aboriginal communities. I do not think we can be excessively concerned with serious problems. I think we have to recognize that they exist. Though third party management is not something that affects every band in Canada, it does affect several dozen and it does have a consequence when bands have to go into third party management. To ignore that and try to do the Walt Disney thing and pretend that everything is happy, which I think is kind of naive to the maximum, pretty much describes the agenda of the NDP on a lot of topics.

However in this case I think it is dangerous too. The reality is that while the NDP members are doing that Utopian and idealistic Marxist game, what they are doing also is ignoring the very real concerns that face real people.

For example, when a band goes into third party management, the third party manager stops being responsible for paying the bills that were incurred before he or she became the third party manager. Essentially that is what is happening right now.

I have several constituents in my own community who have been directly affected by that. They own small businesses. They have done business with the band. Some of them have done business with that band for many years. They are stuck now. One owner of a hardware store is owed $60,000. That is just one small business. He does not have the taxpayers of Canada to depend upon.

This small business person is not able to go into the coffers of the people of Canada to pick on their tax dollars to solve his problems. He is stuck with a $60,000 debt. He does not blame the aboriginal people for it. I hope his relationship with them will continue to be good and fruitful in the future but it tests a relationship when someone gets stuck with a $60,000 bill. He is just one of hundreds of businessmen who are in the same situation right now.

As opposed to some who choose to engage in a sort of class warfare agenda, I do not. We have a situation here where small, private business people who do business with aboriginal people do so in the spirit of mutual benefit. It has been that way for a long time.

However when we push an agenda forward, like the self-government agenda that is being pushed forward today, and we see an increasing number of bands put into third party management situations, there is a problem. We have to be careful that bands have the preparatory skills and the resources available so they are able to handle those management responsibilities.

I have seen some good progress made in that respect. I know the AFN has been working with the Certified General Accountants Association of Canada to build and equip the aboriginal accounting managers, who have some serious responsibilities in terms of reserve management, to upgrade their skills so they are able to do a better job of managing the books of the bands.

However some bands in Manitoba believe we are pushing this agenda forward too rapidly. I think 10 or 12 bands right now are in third party management in Manitoba. Tens of millions of dollars are owed to people who did business with bands before they went into third party management. Now they are stuck and cannot get paid. That does not just hurt business people. I am not here defending small business but I think small business is the principal engine of growth in the country and that is where we should be looking to create real long term jobs.

That being said, I am also concerned about the impact that will have on the future business dealings of aboriginal managers. When those bands go out of third party and come back into a situation of governance, like the minister is dealing with in another piece of legislation, there will be some ongoing concerns about who will supply the bands with the goods and services they need. Who will do that?

If the reputation that the system has is one where there is much higher risk associated with small businesses doing business with bands it will make it more difficult for band managers. They will have to pay more for goods and services because of the added risks and the risk premium that will be charged to them will be a bloody shame. The taxpayers will pay the price for that but the aboriginal people will suffer the consequences.

We must recognize that with push comes shove. Sometimes if we push too rapidly in a political agenda it can have very dangerous consequences on the other end, not just for small business people but for aboriginal communities as well. That concerns me and I think it is an issue we should be addressing.

This particular legislation is portrayed as fulfilling a 10 year old commitment that the government made in the red book. I guess our hope is that we can resolve most of these claims a lot faster than it took to fulfill this particular commitment.

In terms of self-sufficiency, many underlying factors go into promoting self-sufficiency, whether it is on an individual level or when we speak of reserve communities. We agree with the minister's comments that promoting self-sufficiency on reserves is a noble goal. We recognize that access to investment and business start-up money is critical to the success of aboriginal communities in building and creating future jobs.

We recognize that which is why I am addressing the concerns about third party management and the issue of outstanding debt to business people who have dealt with aboriginal bands with the expectation of being paid. There is a consequence when one defaults. Access to investment in business start-up capital becomes an additionally onerous requirement because more money is needed to do business on a reserve if the premium for risk is excessively high, as it is right now in many aboriginal communities.

I want to back up and do a bit of historical referencing to the specific claims process. I was doing some historical reading and found a 1982 publication called “Outstanding Business”. It is a government document. It states:

--a specific claim is one based upon a “lawful obligation” of Canada to Indians.

Claims based on unextinguished Aboriginal title are expressly excluded, as were pre-Confederation claims until 1991. A specific claim, from the government's point of view, is little more than a claim for compensation.

The concept of lawful obligation is important here. Most Canadians want to see a resolution of the lawful obligations that the government has to aboriginal people because they perpetuate divisions in our society. They would also like to see them resolved in the interest of fairness and in the interest of unlocking the potential that does exist for the aboriginal people and the aboriginal communities.

The Department of Justice, however, assesses the validity of claims in terms of their chances of success in court and applies technical rules of evidence. Thus, legal validity informs the government's assessment of whether a claim properly falls within the scope of federal policy. This assessment is further informed, if not defined, by the examples of lawful obligations set out in the policy itself.

What does that mean? A lawful obligation can arise in any of the following circumstances and these define what specific claims are: first, the non-fulfillment of a treaty or agreement between Indians and the crown; second, a breach of an obligation arising out of the Indian Act or other statutes pertaining to Indians and the regulations they are under; third, a breach of an obligation arising out of government administration of Indian funds or other assets; and fourth, an illegal disposition of Indian land.

In addition to those, we have a situation where the government's determination of validity involves, in the estimation of many aboriginal people, a conflict of interest. The government's role in determining what in fact is a valid claim conflicts with the government's fiduciary obligation to aboriginal people and that the government itself should not be the arbiter and determiner of the nature and validity of claims. What this tries to do is set an arm's length mechanism in place that will assure those who participate in the process that they will be treated fairly and that the heavy hand of government will not be excessively brought to bear on the process itself. That is the intention.

The policy interpretations and practices have created that perception for a long time. What I think the legislation tries to do is change that perception for the better, but the reality is, in the minds again of many who participated in this process, that they see the process as somewhat arbitrary, self-serving and operating without due regard to established law. Negotiated settlements are meant to be achieved according to a broader range of rights and obligations than those otherwise enforceable in a court of law.

What we have to recognize is that federal policy has to set a clear standard by which their validity can be determined. If the Department of Justice has a problem with this, I would not be surprised because the reality is that government departments have been in conflict about how to resolve these types of issues for a good long time and probably will be for a good long time in the future.

I want to go back to that document again. I know it is a few years old but it gives a bit of a perspective. It states:

Of an estimated 600 specific claims in Canada as a whole, approximately 100 have been settled under the specific claims policy. As is often the case, however, these statistics do not reveal the full story. Most of the specific claims settlements have been made during the past five or six years....

This was written in 1986. It goes on to state that quite a few of the claims were settled in Saskatchewan and B.C. It also states:

As noted by the Indian Commission of Ontario, about one settlement a year is made in central and eastern Canada; several hundred claims remain to be dealt with across the country.

We have a problem in Canada, not just because of the number, of the 500 or 600 claims right now, but because of the potential for many more. This is in the category of concerns that the Canadian Alliance has about this particular legislation but we obviously agree with the need to expedite the claims.

According to INAC, approximately 1,200 specific claims have been submitted since 1973 when Canada started to address such claims. Some of them have been resolved. The minority of them have been resolved through negotiation. Some of them have ended up in court which as we alluded to earlier is a tremendously expensive process. It costs the taxpayers of Canada a great deal, but so does it cost the taxpayers of Canada a great deal for these issues to remain unresolved. We have to recognize that.

The Alliance has serious concerns about the bill as it is proposed today.

The bill puts an arbitrary cap of $7 million on the amount of the claims that could be dealt with through this process. The Assembly of First Nations has raised a number of concerns about how that cap technically would be determined. What would be included in it? Would legal fees be included in that or just the amount of the claim itself? These questions have to be addressed but certainly our concern is more fundamental than that.

Our concern is that the bill has the potential to create a two tier system for dealing with claim settlements. This is a view that has been expressed by a number of people. Calgary lawyer Ron Maurice, a Metis who has acted for bands on land claims, feels that the tribunal's cap would severely limit the tribunal's mandate. The bill is too narrow to deal with many of the 500 outstanding land claims. It reduces the tribunal to the equivalent of a small claims court.

A great many claims, probably the majority of the claims across the country, exceed, and in some cases far exceed, that amount. What about the more than 500 outstanding claims that we know of today that exceed the cap? Would the facilitation of the small claims result in a delay in the resolution of the larger? Would the process, by defining on the basis of size and that small goes faster, discriminate against the larger? Would the process ignore the validity of the claims? Would the process be able to deal with frivolous claims, expedite them and remove them from the process quickly?

Would the process give weight to the nature of the length of time with which the claim has been dealt? In some cases claims have been kicking around for decades. Would those claims be dealt with expeditiously? Obviously it seems if there are over seven million they would not. What would this do to deal with those longstanding issues of concern many aboriginal people have?

What we do not want to see are unnecessary and costly delays as a result of our attempt to facilitate the smaller claims. In so doing, the net benefit of this change may be very little where the gross benefit appears to be large, because the loss between the gross and the net would be the fact that specific valid, longstanding and larger aboriginal claims would not be dealt with expeditiously. That has been the case in the past. We are concerned about fairness here. We want to make sure that the process is fair.

There is another question that has not really been addressed and which I recognize cannot be addressed in legislation but should be considered in preparing legislation at least. It has to do with the issue of resources.

How much would it cost to resolve and run the tribunals and commissions? What would the costs actually be? I have not seen anything on that. We would need to see that information to do a full and proper evaluation of the nature of the process. The cost consequences go far beyond the costs of providing bureaucratic support and paying for personnel to be in these various positions.

What about the fact that by expediting small specific claims it encourages other claims? We have never made estimates. I met with National Chief Coon Come. He estimated 500 to 600 additional claims would come forward as a result of this process being put into place. Others have estimated it to be over 1,000. Does the government know?

The government did not know the cost of Bill C-68 when it brought it in. It estimated low and it was wrong. The government did not know the cost consequences. I do not believe it has fully evaluated the cost consequences to farmers and landowners of the species at risk legislation, or the animal cruelty act, a well established farm practice. I do not believe the government has considered those perspectives. It needs to consider them in the debate around this bill.

What would be the consequences of encouraging other claims to come forward? They have to be dealt with. Would we have a backlog? How long would it take for that backlog to be dealt with? These are questions that have to be debated and discussed.

There is another fundamental and difficult question which should be addressed. It has to do with the problem faced by aboriginal people on reserves whose lives all too often are governed by hopelessness. They believe that at some undetermined point way off there in the distant future they are going to be the beneficiaries of one of these specific claim settlements and boy, that will solve all their problems.

We have to expedite the valid claims but there is a danger that we perpetuate a culture that says to people that the problems they experience in their home community can be solved by somebody else, that they can be solved by that big government in Ottawa and by golly, that is the way they are going to solve their problems. There is a danger with that.

We do not want young people who are growing up on reserves to believe for a second that somebody here in this building will solve their future problems. We want them to understand that their problems will best be solved by the people in their own communities, their own families, their own friends, their own leaders and their own support groups. The people at the community level are the people we want them to depend on, not somebody here in this building, not somebody in Ottawa.

That psychology of externalizing the solutions is dangerous. The first thing is to look within oneself. That is what I encourage my children to do and I encourage aboriginal children to do the same. Many aboriginal parents have expressed that concern to me in meetings. They want to be sure we do not substitute the real measures that individuals can take. This is what they are saying to me. If we do not substitute those real measures they can take it home to their own communities with the solutions that Ottawa may or may not arrive at. It will benefit them at some distant point down the road.

The final point I would make is a concern that is raised by many Canadians which is the lack of aboriginal involvement in the process. A major dispute going on right now in British Columbia is a referendum about the treaty in British Columbia. Without getting into the minutiae of the debate, the fact is that many people feel they were not involved early on in the process. That lack of involvement is not something that should be addressed just on the aboriginal side. The minister has taken some flak because his consultations did not reach out in the way they should have to women, to reserve residents and to many other people. The point I would make is the consultation in respect to the governance act has failed at least in part because non-aboriginal people were not involved.

We are in this together. The less we focus on what separates and divides us and the more we focus on the fact that we belong to one another in this country, the better it will be. The fact remains that non-aboriginal people view themselves as people who are in a sharing position with aboriginal people. For the most part they support the goals aboriginal people have for a better life. They want to solve these problems in partnership. They do not want to be shunted aside and just asked to pay up. Rather they would like to feel they are making a real contribution to solving the problem. They should be consulted early. Failing to do that creates a division and a sense of separateness that really taints the discussion.

I have aboriginal friends who say it is none of my business, just pay my taxes and they will take the money because it is owed to them. Some of my friends have that attitude. On the other side, non-aboriginal friends of mine say that they do not like that attitude and why should they just pay their taxes and shut up? When there is that kind of divisive tone in a debate, not much gets done. The perpetuation of that kind of racial divide is dangerous to our country.

It is very dangerous here and we are seeing it in British Columbia with the referendum debate. If credible opportunities are not given for non-aboriginal people to be involved in the process, then the point is being missed. Aboriginal people matter in the debate as well. The key in this is fairness, a word the minister used. The government does have communications people who I am sure contributed greatly to the minister's speech today, but the word fairness was used. The government uses that word quite a bit. Balance is a close second. Those are good noble word. The reality is the process has to reflect that but it is missing here.

Why is it missing? Because the federal government broke its promise. What it promised to do a decade ago in that red book was create an independent claims body. The promise went further in the red book. It said that it would be jointly appointed by the government and the first nations.

That is not what this will do. What this does is it gives the power to appoint the counsellors and the members of the commission to the Prime Minister's Office. It shuts out the aboriginal people from the process of determining who those people are. We could get into a debate about the merits of that, pro and con, but the fact is that commitment was made. A promise was made; a promise was broken. It is not the first one but I hope, and I think most aboriginal people hope, that it will be the last that is broken.

The appointment process, according to National Chief Matthew Coon Come, is this. He says:

The appointment process makes the entire process open to possible patronage nominations. This will not serve Canada or First Nations well.

Those are wise words. The national chief is right to express those concerns. We have those concerns as well.

The grand chief of the Federation of Saskatchewan Indian Nations says:

The appointment to the tribunal must not be done unilaterally by the Crown. We want some input into the criteria of who is selected to sit on the tribunal to ensure that it is independent and the process is seen as meaningful by First Nations and all Canadians.

These are legitimate concerns expressed by legitimately elected aboriginal leaders at the national level and the provincial level. We share these concerns. The process has to be fair and it has to be seen to be fair or it will not work.

The government is putting more control in its own hands, in the Prime Minister's hands, through this process despite its earlier commitments to share that control and that selection process with the aboriginal people. That is a broken promise and is a disappointment to many aboriginal people.

Finally, June 21 is coming up fast. Not fast enough I expect for many of the members here. June 21 is National Aboriginal Day. This piece of legislation stands as an example, in words at least, of the government's intention to resolve one of the longest standing areas of dispute between aboriginal and non-aboriginal Canadians. In that respect, it is our sincere hope that we can, with amendments, make this legislation work effectively to achieve its stated goals.

I know that on June 21 many of us will be joining our aboriginal friends to celebrate their great contribution to this country. When we celebrate the uniqueness and the great contributions of aboriginal people, we will not be celebrating our differences, we will be celebrating our shared qualities. It is those shared qualities on which the Canadian Alliance wants to build. We recognize that we belong to one another and we will ensure that we do everything possible to stand up for the rights of individual aboriginal Canadians and for the great contribution that aboriginal societies have made and will continue to make to our country.

Specific Claims Resolution ActGovernment Orders

June 18th, 2002 / 1:45 p.m.
See context

Kenora—Rainy River Ontario

Liberal

Bob Nault LiberalMinister of Indian Affairs and Northern Development

moved that Bill C-60, 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 second time and referred to a committee.

Mr. Speaker, I am pleased to rise in the House to speak about a bill respecting the specific claims resolution act. Its purpose is to establish an independent claims resolution centre to improve our ability to resolve specific claims of first nations.

We are proposing a centre with two components: a commission to facilitate negotiations on specific claims by first nations, and a tribunal to resolve disputes involving those claims. This is a key step among the legislative initiatives we are taking to clear the way for first nations to play a more comprehensive part in the life of this country.

The principle of the new system is simple. Both the Government of Canada and first nations would rather negotiate than litigate. By having in place this independent claims resolution centre we would speed up settlements and reduce the cost of reaching agreements. We would be able to resolve quickly a number of historic grievances, and by settling these claims, first nations and neighbouring communities could proceed with confidence in a climate of stability.

Our government is fulfilling a pledge. As members will recall, in the Liberal Party of Canada's original red book and in the subsequent 1997 Liberal plan “Securing our Future”, we recognized that delays in resolving land claims were a fundamental barrier to allowing many aboriginal people and their communities to achieve their full potential.

We pledge to have in place a claims body to render binding decisions on the acceptance or rejection of land claims for negotiation and to consult with aboriginal organizations on whether the body should facilitate, arbitrate or mediate disputes that may arise between Canada and the first nations in the negotiation process. The specific claims resolution act would legislate a system to accomplish those precise red book goals.

With this proposed act we would help to fulfill the vision of Canada's aboriginal action plan that we put in place in response to the report of the Royal Commission on Aboriginal Peoples. That vision would see increasing quality of life for aboriginal people and the promotion of self-sufficiency through partnership, revenue generation, responsiveness to communities and values, and a place for aboriginal people and other Canadians. By resolving claims through this new system we would realize this vision and pave the way for greater economic development of first nation communities.

The benefits for aboriginal and non-aboriginal communities alike should be obvious to all members of the House. Experience shows that partnerships between first nations, the private sector, corporations, governments and communities benefit the economic health and prosperity of the entire country.

In the last 10 years the number of aboriginal business start-ups has exceeded those of the rest of the Canadian population by 105%, however these businesses require access to investment and loan capital if they are to grow and prosper.

With the removal of roadblocks to land claims resolutions, the climate for investment can only improve with expanded partnerships and joint ventures with non-aboriginal businesses in the private sector. The results are new markets across our nation and globally with consequent expanded employment opportunities across the board.

Resources now used in settling claims in the current adversarial system can be saved and better applied to this economic development for the good of all. This is truly win-win for aboriginal and non-aboriginal sectors working together, and it benefits all Canadians. In many ways, Canada's specific claims policy, which our new independent claims body would improve, has had a significant measure of success.

Since it was adopted in 1973 first nations in Canada have ratified 232 agreements in every region of the country worth $1.2 billion in total. These agreements will add over 16,000 square kilometres to the reserve land base of first nations. Recently more than double that number of claims has been added to the inventory of unsettled claims and the backlog is growing.

The current system in place cannot move with the speed and independence that both my government and first nations need to see. We must do better. We must settle the backlog of outstanding claims and have in place a new system that will support the resolution of new claims. We must establish a process that is more independent, impartial and transparent. This is about fairness.

First nations believe the existing process lacks fairness and transparency in the areas of research and assessment, that it does not provide a level playing field for negotiations and that it lacks independence, impartiality and accountability. Their lack of confidence in the fairness of the process means first nations are reluctant to accept negative decisions about the validity of claims. Costly court actions causing further delays are the result of that. Every dollar wasted in court is a dollar less for investment in economic development, governance and bread and butter issues. In this atmosphere enhanced partnerships and economic development can hardly be expected to flourish. That is the reason we are speaking here today and moving on this initiative.

Under the proposed act, the commission and tribunal would be established as neutral arm's length claim facilitation and adjudication bodies in law. Transparency would be enhanced. Funding of first nations to participate in the specific claims process would be managed by the commission, eliminating the current perception of conflict of interest.

The existing process would be simplified. An effective alternative to litigating specific claims in the courts would be provided through negotiated settlements through the commission and authority of the tribunal to render binding decisions as a last resort.

Hand in hand with fairness goes accountability. We as a government are accountable to first nations and other Canadians to ensure we have in place a land claims settlement system that is fair, transparent and efficient. The specific claims resolution act contains extensive accountability provisions to help achieve those ends. These include annual audits by the auditor general; annual reports tabled in parliament and made available to first nations and the public for scrutiny; quarterly reports on compensation; and a requirement for a full review between three and five years of its coming into effect.

We have built this legislation through partnership with first nations. In 1996 the federal government and the Assembly of First Nations established the Joint First Nations-Canada Task Force on specific claims. This event marked the beginning of consultations on the creation of an independent claims body. In 1998 the joint task force called for a two stage body consisting of a facilitative commission and an adjudicative tribunal in its set of recommendations.

One key feature of this proposal that has been particularly well received is the emphasis on dispute resolution processes to make negotiations work better.

Under the act the new commission's fundamental role would be to facilitate the resolution of negotiated settlements with authority to apply a full range of alternate dispute resolution processes: facilitation, mediation and non-binding arbitration. Even binding arbitration will be available with the consent of the parties. All claims regardless of size, complexity or value would have access to these processes through the commission.

On June 21 we will mark National Aboriginal Day, an occasion for all Canadians to celebrate the rich contribution aboriginal people have made to Canada. There will be colourful events across our country when young and old alike from all communities and the Canadian family join together for these celebrations. We need to celebrate the participation of first nations in our lives for more than just one day. In order for that to occur we need this act to resolve land claims quickly, fairly and efficiently to resolve historic grievances, to remove economic development roadblocks and to promote self-sufficiency of aboriginal people and a new climate of partnership.

At the current rate we are resolving claims, if we were to leave the system in place, we would be leaving it to our children to deal with the grievances of the past. With this new body and the role it would play, it is hoped that we would resolve grievances of the past quickly and move on with building a future.

I hope that all members would agree with me that this is the right step to take. I look forward to their support in this new act that I am presenting today to the House.

Specific Claims Resolution ActRoutine Proceedings

June 13th, 2002 / 10:05 a.m.
See context

Kenora—Rainy River Ontario

Liberal

Bob Nault LiberalMinister of Indian Affairs and Northern Development

moved for leave to introduce Bill C-60, 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.

(Motions deemed adopted, bill read the first time and printed)

Bankruptcy And Insolvency ActPrivate Members' Business

May 14th, 2001 / 11:05 a.m.
See context

NDP

Pat Martin NDP Winnipeg Centre, MB

moved that Bill C-203, an act to amend the Bankruptcy and Insolvency Act (unpaid wages to rank first in priority in distribution) be read the second time and referred to a committee.

Mr. Speaker, I would like to say at the outset what a rare and wonderful thing it is for an opposition backbencher to be given the opportunity to bring forward one of his or her own private member's bills for debate in the House. I think most members would agree that one of the most satisfying aspects of our job is when we can actually shape the course of the debate for at least one hour.

Most private members' bills that are brought forward are very thoughtful and very well researched and seek to address a very important subject brought to the member's attention, usually by people in his riding or across the country.

However, I am very disappointed and I begin the debate with a certain element of sadness. My private member's bill seeks to right an historic wrong but was not deemed to be votable by the ad hoc committee that meets regularly to deal with private members' business. This is a criticism we in the House should observe and it is something that should be rectified. When a private member, no matter what party he or she belongs to, opposition or government, brings forward an important issue on behalf of their constituents we should be giving it a bit more consideration and allow the issue to get to committee stage.

In speaking to Bill C-203, a bill to amend the bankruptcy act, I want to dedicate the effort we made to bring this issue to debate to the workers at the Giant mine in Yellowknife. As members may know, the history of the Giant mine has been a tragic one. It has involved a great deal of labour unrest. Many workers have suffered at the hands of an absentee landlord, namely foreign ownership. Nine people died in an explosion at the mine.

As if the employees and the citizens of Yellowknife have not gone through enough inconvenience, Royal Oak-Giant mine has declared bankruptcy. The workers, after years of working in the mine, have been left with back wages owing to them as well as pension contributions and severance pay. The bill seeks to address those problems. In the event that any enterprise goes insolvent or bankrupt, the current law has workers' wages ranked down on the list of priorities as to who will divide up the assets of the enterprise.

Before I go into the details of the bill, let me say that the employers do not really resist this type of amendment to the act because by the time an enterprise declares bankruptcy the few assets that are left over are of little consequence to the owners of the company. They would not oppose this sort of activity. In the interest of basic fairness we would want to believe they would want the interests of their employees addressed and prioritized in terms of dividing the few assets that are left.

I also want to explain some of the rationale behind putting the interests of the employees ahead of the interests of the other creditors or bankers.

A very special relationship exists between an employer and an employee. It is a contract of sorts or a tacit agreement between the employer and the employee. It is not enshrined in a written document, such as a collective agreement, but it is recognized in law. The relationship is very simple. The employee provides a basic service or a service the employer wants and the employer pays a set wage or a remuneration for the service. That exists and is recognized in common law.

Both parties have certain obligations. The obligation of the employee is to do their duties in a diligent fashion and to be loyal to the employer. There are many cases in common law that the duty of loyalty of the employee to the employer goes beyond the workplace. The employee is not even allowed to trash the employer in his private life. Certainly that relationship is recognized.

The employer has an historic obligation to recognize the debt to the employee for services rendered. One of the reasons common law is usually sympathetic to the employee in situations like this is that there is an historic out of balance in the relationship. The employer holds all the cards while the employee holds very few. The employee is really at the mercy of the whims of the employer, which is where it becomes very much a trust relationship. It actually goes further than that. The trust of the employee for the employer to pay him or her is usually far more serious. If the employer reneges on the obligation to pay the wages, the impact on the employee is much more serious than if the employer had chosen not to pay back the debt to one of the banks or lending institutions.

I would argue that when the lending institutions loan money to a company they know full well the risks that might be involved in that enterprise. They even get compensated for that risk by charging interest on the loan. Usually by the time a company goes bankrupt the loan has been repaid, at least in part. The bank or lending institution will be compensated for at least some of the risk it puts into the venture, either through interest payments or payments to the principle.

The impact on the employee, however, is far more serious. We are talking about a person's day to day income. It may mean the loss of their home. It may mean a huge impact on their family or huge impact on an employee's spending power which influences small businesses in given areas.

In terms of the relative weight of a debt to an employee versus a debt not paid to one of the banks or secured creditors, the impact, I would argue, is far greater, which is why common law has been a little more sympathetic to the employee in that case. However, that sympathy has not been translated into legislation.

Since 1975 my research shows that this issue has been before the House of Commons to be remedied to varying degrees of success four times. There was always a basic recognition that the employees, because of the imbalance in the power relationship, needed the authority of legislation to look after their interests more than the banks needed the legislative authority of parliament to look after theirs.

What should be our primary concern in the House? Whose interests should we be here advocating? What should be primacy in terms of the relative priority of who is more at risk and who deserves our support more? I would argue that it is the people of Canada, the working people of Canada, who sent us here to advocate on their behalf. They are the ones who need representation. I would argue further that chartered banks or lending institutions are far more able to absorb the impact of a debt gone bad than working people. They do not frankly need our help. The people who voted for us need our help.

Bill C-203 results from extensive research on various mechanisms and the instruments we could put in place that would give some relief to employees in a situation like this one. We looked at various models from around the world because Canada is not alone in realizing that employees need more protection through legislation. We looked at a few options.

For instance, Australia put in place a wage guarantee scheme which is a little different from what I would put in place with my bill. It contemplates putting together a pool of funding through the government. Through either general revenue or some payroll tax the government would actually be responsible for the back wages owed to employees.

I am critical of this model, even though it is working quite well in Australia. It is better than nothing, in that at least there is some avenue of recourse and some satisfaction that employees can achieve. However it also raises problems.

During the debate in Australia to put in place its wage scheme the spectre of a moral hazard was raised. If employers knew that there was a fallback position for employees they might be more likely to leave the employees dangling or to fail to clean up whatever mess has been made in terms of back wages prior to the bankruptcy situation. I caution it is probably not the right route to go.

I will speak later to how various boards and task forces in Canada arrived at recommending a wage scheme rather than at what I am recommending in my bill.

Another alternative which comes up now and then is giving a special status to employees, the preferred creditor status. This as well has its shortcomings and shortfalls. I advise it is not the best way to go.

We are recommending giving a super priority to the back wages owed to employees. In the event of a bankruptcy employees would be first in line for any back wages, back contributions to pensions and severance pay. In the event of self-employed people, travelling salesmen for instance, they would be in line for any costs they might have incurred. In other words, any wages or compensation owed to employees should be cleared up first out of the assets remaining in bankrupt companies and the others can get in line to divide whatever is left over.

It is an issue of basic fairness. It is an issue that recognizes the historic imbalance between employers and employees and the imbalance between the ability of employees to recoup any back wages versus the authority of the banks or any other lenders or creditors.

Looking at the history of what the House of Commons has tried to do to deal with this issue over the years, I note the Canada Business Corporations Act looks at the issue of unpaid wages and the liability on corporate directors. At least it was contemplated in that act.

Liability for wages can be assigned to the directors in certain situations. Directors can be sued personally. If an individual employee wants to go after the board of directors, the directors can be liable. There is a section in the act which covers the liability of directors and makes it very rare for employees to be able to sue directors.

Subsection 123(4) exonerates directors from any liability if they were acting in good faith on the information given to them through the financial information of the company. In other words the onus would be on employees to prove that directors were acting in bad faith and were not dealing properly with the information given to them. It is a huge burden to put on employees. If average employees went after a few thousand dollars worth of back wages they would never be successful in this challenge.

We could trace the efforts to amend the bankruptcy law back to Bill C-60 in 1975 when an effort was made to introduce the idea of a super priority status for employees. The Landry committee in 1981 gave it an effort. The Colter advisory committee in 1985 made a series of recommendations to change the Bankruptcy Act for just this reason, to give employees a super status.

The committee recommended that a fund should be established, which is not exactly what I recommend, and believed that it should be paid for by contributions from employers and employees. My argument would be why should employees have to pay some sort of a premium to buy insurance to guarantee that their wages would be paid. That is patently unfair and goes in the wrong direction.

I believe this is an act whose time has come. I am very disappointed that it was not given the votability it deserves. I point to the incidence of bankruptcy in Canada. If I had more time I would go through the details. Last year alone there were 10,500 bankruptcies, leaving a total liability of $2.5 billion. In 1999 there were 10,800 bankruptcies, leaving a liability of $2 billion. The same was true in 1998.

Every year approximately 10,000 companies go out of business and every year employees are left dangling on the hook for back wages, back pension contributions, severance pay and other compensation to which they were entitled. I appeal to members of the House of Commons today to recognize that the wages of workers should stand first in line in terms of priority whenever a company goes bankrupt.