Bill C-6 (Historical)

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

Specific Claims Resolution Act

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Yes, he is the minister of backlogs and he will continue to be the minister of backlogs.

In this backlog, 48% of the specific claims are from first nations in British Columbia. That is almost half. The most claims from any region in Canada are in the province of British Columbia. First nations in British Columbia have the most to gain from the establishment of a truly independent, fair and timely process. And they have the most to lose if the bill before us is passed without further significant amendments, which we have come forward with in the past.

Bill C-6 will institutionalize the federal government's conflict of interest in judging claims against itself and will authorize and reward the Minister of Indian Affairs for indefinite delay in deciding whether or not to accept specific claims for negotiations. It will institutionalize the conflict of interest in the whole process.

The Alliance of Tribal Nations is outraged by the failure of the minister to consult with first nations on Bill C-6, by the speed with which Bill C-6 was rushed through second reading, and by the fast tracking of this legislation through the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources.

As members may remember, only one day was allocated for briefs from first nations, with their presentations being limited to from 5 to 10 minutes, and with only 10 to 20 minutes for questions and answers. That was not enough. If we wanted to listen to all the parties involved, one day, with just 5 to 10 minute presentations, was not good enough.

The Alliance of Tribal Nations has asked that I oppose this legislation vigorously. That is why I am participating in the debate along with my other colleagues, who have already given a good version of this whole situation.

In conclusion, I would like to say that the Canadian Alliance strongly supports the speedy resolution of claims. However, this bill will not speed up the resolution of claims and particularly not the larger and more costly claims. The Senate recognized all the main problems with the bill, which we in the Canadian Alliance pointed out during earlier debate in the House. While the Senate amendments marginally improve the bill, they do not go far enough to rectify the fundamental flaws in the legislation. We therefore stand opposed to the Senate report and to the final passing of this bill.

However, I believe that this exercise of participation in the debate is an exercise in futility. It is an exercise in vain. First, the government does not listen. Second, we know that the House is going to prorogue soon for the preparation of the incoming leader. Or maybe the House will adjourn soon and all this legislation will be pending and will go into the waste bin eventually. I will just say for the sake of analogy that if we have to demolish something and there is a bulldozer next to us but we continue building something with the hope that it will not be demolished, we know that if the bulldozer is there our building will be demolished. The work we do will not be fruitful.

I am concerned that the government is not serious about specific claims settlement. I still believe that if the government listens to the official opposition, to the other concerned bodies and to first nations, it can come up with some proposed amendments. The government should listen. That would improve the quality of the bill.

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Madam Speaker, I am very pleased to rise on behalf of the constituents of Surrey Central to participate in the debate on Bill C-6, an act to establish the Canadian centre for independent resolution of first nations specific claims.

After seven months Bill C-6 has returned to the House with amendments from the Senate. The Senate has recognized all of the main problems of the bill which my colleagues in the Canadian Alliance, the official opposition, pointed out during earlier debate in the House.

While I support these few Senate amendments, my colleagues in the official opposition and I feel they do not go far enough to rectify the fundamental flaws in the legislation. Personally, I do not subscribe to the logic that a bad law is better than no law at all. It is incumbent upon the government to produce legislation that furthers the interests of aboriginal people and the general Canadian public. With Bill C-6 the Liberals have failed in that duty.

I will now speak to the specifics of the bill. On the definition, specific claims as opposed to comprehensive claims deal with the grievances over Canada's alleged failure to discharge specific obligations to aboriginal groups, usually in relation to treaty rights or undertakings given by the federal crown.

Bill C-6 provides for the filing, negotiation and resolution of specific claims and makes related amendments to other acts. The stated purpose of the proposed act is to establish the Canadian centre for the independent resolution of first nations specific claims. The centre will be composed of a chief executive officer, a commission and a tribunal with the commission and tribunal playing the most significant roles in the day to day process of dealing with specific claims.

In 1998 a joint Canada-Assembly of First Nations working group set out a draft legislative proposal for a reformed specific claims process which included some key features. One was the elimination of Canada's conflict of interest through an independent legislative mechanism to report directly to Parliament and first nations. Another was to establish both a commission to facilitate negotiations and a tribunal to resolve disputes in case of failed negotiations. It also included a tribunal authority to make binding decisions on the validity of claims, compensation criteria and compensation of awards, subject to a budgetary allocation of settlement funds over a five year period.

Its keys features also included the definition of issues within the jurisdiction of the commission, the independent funding for first nations research and negotiations, and a joint review after five years to include consideration of outstanding matters such as lawful obligations arising from aboriginal rights.

That was the model legislative initiative upon which Bill C-6 was to be built. The question is, what happened after that? Instead of this model, the bill before us has the following six conditions. The appointment process for the commission and the tribunal maintains the conflict of interest that Canada has as the federal government is the sole appointing authority. The tribunal's decisions may be appealed to the courts. There is a cap on the dollar amount of claims to be dealt with. The review of the entire process is only binding on the federal government. There is no incentive for the federal government to move the claim settlement process along in a timely fashion. Last, the types of specific claims subjected to this process are severely restricted.

Under the present system Canada is the judge and jury at the same time. If enacted, Bill C-6 will do nothing to alter this situation. The title of the bill suggests that the newly created body will be independent but that could not be further from the truth.

How could the new claim resolution centre be truly independent if the government appoints all the commission and tribunal members? There is a compromising situation. How could it be independent? Those appointments include the CEO, chief commissioner and chief adjudicator with only token input from the first nations.

Suspicion about partiality, patronage and conflict of interest will inevitably plague the centre, destroying its legitimacy in the eyes of the first nations. Not only will it not be independent, but there are indicators that the perception would be it is not completely independent. This is a fatal flaw for independence is essential to the successful working of the centre. Independence must exist in fact and be perceived to exist by all parties as well as by the public.

Under the proposed legislation, not only does the Minister of Indian Affairs have the final word on who will work on and decide specific claims, he or she is also directly involved in the claims process itself. Once a claim is filed, the commission must provide a copy with supporting documentation to the minister. After preparatory meetings the commission must then suspend proceedings until the minister decides whether or not to accept the claim for negotiation. I do not see any independence of this body in its complete working with respect to these claims.

Bill C-6 permits the minister to consider a claim indefinitely. There are no time limits that must be obeyed. No independent body has the authority to say that enough is enough.

Allowing the minister, who is a party, to determine the next step in the proceedings essentially takes carriage of proceedings away from the claimant and the centre and places it with the respondent.

Under the proposed legislation, the commission lacks the authority to compel all parties to act. Nowhere is this more evident than in the absence of authority to compel the minister to respond to a claimant band in a timely manner.

Now, as for the cost components, as my colleague from Saskatoon—Wanuskewin noted earlier, the Senate amendment increasing the tribunal cap from $7 million to $10 million is little more than tokenism. The requirement for claimants to waive their rights to compensation above the specified cap set out in clause 32 in order to obtain a tribunal ruling on the validity of their claim has been singled out by critics as the most significant flaw in this bill. We pointed this out during the previous debates, but the government did not listen to those objections.

We just have to look at the cost to the federal and provincial governments of previously settled specific claims and we can see why aboriginal groups are up in arms over this provision of Bill C-6. Documentation related to specific claims settlements in Saskatchewan since the mid-1980s shows that the treaty land entitlement class of specific claims, asserting that Canada did not provide the reserve land promised under treaty, resulted in payments of $539 million. Individual settlements ranged from a low of about $3.1 million to a high of $62.4 million. The average is over $18.5 million.

Other specific claims in Saskatchewan cost a total of about $128.6 million, with individual settlements ranging from just over $0.4 million to $34.5 million. Saskatchewan is only one example. Counsel for the Indian Claims Commission indicates that of the 120 claims the ICC has dealt with, only three were settled for less than $7 million. According to the Assembly of First Nations, in the past three years, 8 of the 14 claims paid out by the federal government were for amounts over $7 million.

Therefore, it strikes me as extremely disingenuous for the government to try to cap settlements at $7 million. It does not make sense. Based on the Saskatchewan settlements, the amended cap is little better. The member for Saskatoon—Wanuskewin proposed an amendment in committee to increase the cap to $25 million. If that amendment had been accepted, far more specific claim cases might make it before the proposed claim body. That was a sensible amendment, but unfortunately it was not accepted.

Cases take longer and cost more when dragged through the courts, having the effect of delaying the time when a final decision is brought down, and therefore postponing the date at which the government is required to pay out a claim for a decision made in favour of the claimant. Therefore, the imposition of a cap on the tribunal looks much more like a strategic stalling tactic by the government than an example of fiscal prudence.

Who is standing up for the taxpayers in this new process? Who is standing up for the taxpayers? Bill C-6 will discourage the use of the less costly alternative dispute mechanisms and will thereby waste taxpayers' money, for there is no prudence and no diligence. I am concerned about that.

Now, about the backlog, one of the primary goals of the bill is to provide for speedier resolution of claims. According to the Department of Indian Affairs Specific Claims Branch, between April 1, 1970 and December 31, 2001, only 230 of 1,123 specific claims were settled. A small fraction of the remaining claims, 466, were in various stages of review, while 119 were in active or inactive negotiation, 181 had been closed or were found to establish no lawful obligation, 33 had been resolved administratively, 50 were in active litigation, and 44 were before the Indian Claims Commission.

The picture is clear. This legislation does nothing to eliminate the specific claims backlog. We will be facing the same backlog with the same pace for the settlement of the claims, so there is no improvement in that. Bill C-6 in fact offers numerous opportunities for the government to delay and stonewall with impunity. It will not ensure a faster claims resolution process. The Senate committee examining Bill C-6 recognized this to be the case. I myself noted this flaw in the bill when I was speaking last time in the House, yet the government has done nothing to correct this serious flaw despite its stated intentions.

Regarding the reactions of B.C. first nations, Bill C-6 has been met by opposition from aboriginal groups across Canada, including those in my home province of British Columbia. The British Columbia Alliance of Tribal Nations, representing 23 member first nations, feels that Bill C-6 completely fails to meet the bill's stated principle, namely, to establish a process for the resolution of specific claims that is independent, fair and timely.

On those three counts, the government has let down the aboriginal people. The process is not independent. It is not fair. It will not be timely in its operations. Aboriginal people argue that it will instead create a process that is even worse than the current flawed process, which has over 500 claims sitting in a backlog awaiting the minister's decision on whether or not they are acceptable for negotiation.

[Judy Sgro, Liberal, York West, ON]

Madam Speaker, the principle of the new system that Bill C-6 proposes is very simple. Both the Government of Canada and the first nations would much rather negotiate than litigate.

Having such a centre as proposed by Bill C-6 means first nations would have an effective means to deal with outstanding grievances, thus helping to remove an enormous roadblock to economic development in communities that we all care very much about. Investors could proceed with confidence and first nations could negotiate from positions of strength.

By supporting this proposal we are fulfilling a pledge to have in place the authority to facilitate, arbitrate or mediate disputes that may arise between Canada and the first nations in the land claims negotiations process, and binding decisions rendered on the acceptance or the rejection of such claims for negotiation.

With this proposed act we are in addition helping 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, something again that is long overdue for action on those files.

That vision sees increased quality of life for aboriginal people and the promotion of self-sufficiency through partnerships, revenue generation, responsiveness to community needs and values, and a place for aboriginal people with other Canadians.

By effectively dealing with outstanding claims through this new system we would help to realize this vision by clearing the way for greater economic development of first nations communities. The benefits for aboriginal and non-aboriginal communities alike should be obvious to everyone. Experience shows that partnership between first nations, the private sector, corporations, governments and communities benefit the economic health and prosperity of the entire community.

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 a benefit for aboriginal and non-aboriginal sectors working together as it benefits all Canadians.

We realize it is not perfect. Few pieces of legislation are actually perfect. This is a big move toward trying to solve some of the ongoing problems of the aboriginal communities. The other two pieces of legislation that are still to go through the House together would very much help to ensure that the aboriginal community has a strong and positive future in Canada.

[Judy Sgro, Liberal, Parliamentary Secretary to the Minister of Public Works and Government Services]

Madam Speaker, I am pleased today to rise to speak in support of Bill C-6, the specific claims resolution act to establish the new claims resolution centre, something that has been many years in the coming.

The bill is a cornerstone of the government's overall strategy to have a new system to resolve specific claims which will be more efficient than the process we have now and give first nations the tools of self-sufficiency that will enable them to play a fuller part in the life of this country.

Having heard the concerns of first nations about different aspects of the bill, parliamentarians in both the House and the Senate have acted to make constructive changes to the proposal in light of these criticisms.

Most recently, the Senate put forth a number of important amendments to proposed Bill C-6 that would directly address the concerns of first nations and render the proposal a better piece of legislation, something that we all want to see. This, in turn, should give first nations the confidence to use the claims resolution centre as outlined in this new legislation.

It is comforting to see that the parliamentary process has worked and is responsive to the concerns of the first nations and that better legislation is derived from the cooperative efforts of all stakeholders and all parliamentarians.

To refresh people's memories, the proposal would have a chief executive officer, who would handle the day to day administrative matters of the centre, as well as a commission to facilitate negotiations on land claims by first nations and a tribunal to resolve disputes involving those claims.

[Pat Martin, NDP, Winnipeg Centre, MB]

Madam Speaker, I thank my colleague for Windsor—St. Clair for a very thorough analysis. Being a lawyer himself, he added to the debate some of the legal context. Many of us lay people have a gut feeling that something is fundamentally wrong with the bill, but it is reassuring to learn that there a basis in law for our objections and for the cautions and concerns that were raised in the House of Commons, at committee stage and more recently in the Senate.

One of the specific issues which has come to light in the Senate debate, because we are technically here to debate the amendments from the Senate, is the conflict of interest that has to exist by virtue of the fiduciary obligations of the crown in its relationship between the crown and first nations and the fact that first nations have to come forward and make claims for resolution to their specific claims to the government. Therefore, it is a clear conflict of interest.

I will cite a court ruling as well. When there is a fiduciary obligation, the Supreme Court has ruled in Guerin v. The Queen that the highest standard of conduct must apply. With first nations, when the crown is acting unilaterally in its fiduciary capacity, it must be held to the highest standards because the honour of the crown, and I heard the hon. member mention the honour of the crown, is at stake in such matters. That was the findings in Guerin v. The Queen, a recent Supreme Court ruling.

In that context, could the member share his views on the fact that Bill C-6 imposes a cap of $10 million? Notwithstanding the denial of the minister, there is a cap, or a ceiling, on any claim. Would he agree with me that it puts a first nations community, a band, in an uncomfortable and an untenable situation?

If the value of a claim is say, within the range of $10 million to $15 million, in that ballpark figure, and the option is to go ahead with the specific claims process and get a relatively quicker resolution or to carry on in the courts for another 10 or 15 years and spend millions of dollars in the court, the temptation will be to settle for an amount of money less than the real value of the claim.

Given the urgent fiscal crisis in which many first nations communities find themselves, the chief, council and the elders will say that they could get $8 million, $9 million or $10 million today or within a reasonable time, or they can go another 15 years in this mind numbing battle with an obstinate government that refuses to settle, spend another $5 million in legal fees and maybe get their $15 million down the road.

Would the hon. member agree with the fairness of the pressure, the economic violence is what I call it, and the coercion associated with having to make that kind of choice?

[Joe Comartin, NDP, Windsor—St. Clair, ON]

Madam Speaker, I believe we are faced with two issues today as far as Bill C-6 is concerned. I would address them in the following order. First, the fact that the government once again has used time allocation, a form of closure, to limit debate on what is a crucial issue for the first nations.

I just looked up some numbers and we know this is not the first time the government has used time allocation. In fact I did a comparison with Prime Minister Mulroney's administration from 1984 to 1993. That particular government used closure and time allocation 72 different times, which was heavily criticized by the current Prime Minister and his party throughout that entire period of time. It was a gross exception in the number of times that time allocation or closure was used.

As of today this government, which has been in power from 1993 to 2003, has used closure and time allocation 85 times. Therefore the hypocrisy of the government's position is quite clear. It is particularly shameful in terms of its conduct that it is being used on this particular bill and being used against the first nations.

It is quite clear, from our responsibilities as a legislature, that we have been directed in a series of cases by the Supreme Court of Canada on what our responsibilities are toward the first nations with regard to consultation and taking into account their position on legislation that affects them directly.

The first nations have been very clear and absolute, and I mean absolute in that term. They have been absolutely unanimous in their opposition to the legislation because it is a perpetuation of the paternalistic approach that we have used, Europeans have used, toward first nations since we came to the country and that Parliament historically has used in various pieces of legislation, most notably the Indian Act.

The proposed legislation and the approach by the government perpetuates that position and that attitude. The first nations have attacked the bill and have made it clear that they do not support it. They have a number of specific reasons, other than the basic approach, but they oppose the very contents of the bill.

The fact is that the House is being given the opportunity to once again say to the first nations people that we recognize what we have done wrong historically, that we will take another look at this and we will deal with claims on a nation by nation basis.

The fact that the other place has given us that opportunity is one that I would urge all my colleagues in the House to take advantage of today and when we come to vote on the bill.

I will use as one example, and we have heard this from some of the other members today, the opposition that has come from the first nations. This is just on one aspect of the bill, which is whether there is an independent commission here. I think anyone who has looked at the bill with any kind of objectivity realizes that there is not an independent commission.

A group, formerly known as the Aboriginal Rights Coalition, called KAIROS gathered a petition with 50,000 signatures from across the country. When it was brought to Parliament it did not quite meet the technical requirements, so it could not be filed in the House according to our standing orders. What it did then was ask the Prime Minister to receive it in order for him to perhaps finally understand the opposition among the first nations to the proposed legislation. To date, he has not agreed to do that.

I have a list of all the first nations and associations among the first nations that have opposed the bill. They have signed on saying that this commission is not independent. They are saying that we are going to have a commission appointed by one side, the Government of Canada, to arbitrate and make decisions on land claims to the exclusion of the other party, in this case the first nations. The list is quite lengthy.

Today, we are faced with time allocation. It is a shameful experience to say that we are part of a Parliament that would do that. It is even more so, when we look at the legal and constitutional position that we are in vis-à-vis the first nations. The Supreme Court of Canada has made it clear what our responsibility is with regard to consultation.

When this bill originally came forward to the aboriginal affairs standing committee in the House, it got very short consideration. There were at least 30 first nations and other organizations who wished to be heard and were not given that opportunity. In the other place, although the committee did hear some witnesses, once the amendments which are before us today were placed before the committee, there was no further evidence taken or interventions heard from first nations witnesses.

In fact, there have been no consultations on these amendments either here in the House of Commons or in the other place. The significance of that is that since 1982, since we repatriated the Constitution and introduced the Charter of Rights and Freedoms, we now have special responsibilities to the first nations.

If we were to review the Supreme Court of Canada's decisions addressing this consultation process with respect to the aboriginal peoples, we would get some sense of the scope and the magnitude of the consultation that is required. It is very clear that the Supreme Court expects us to conduct that consultation at every opportunity and with regard to every single piece of legislation affecting the first nations. It is not something on which we have a choice. We must absolutely do this.

There is a larger principle, which affects not just the first nations, of democratic government that was outlined by the Supreme Court in the reference regarding the secession of Quebec, something to the effect that “a functioning democracy requires a continuous process of discussion”. We have that at the larger level as well.

The Corbiere decision by the Supreme Court of Canada elaborated on that and would affect the first nations directly. It stated:

The principle of democracy underlies the Constitution and the Charter, and is one of the important factors governing the exercise of a court's remedial discretion. It encourages remedies that allow the democratic process of consultation and dialogue to occur. Constitutional remedies should encourage the government to take into account the interests, and views, of minorities.

With respect to aboriginal peoples, the requirement for discussion goes beyond just those basic philosophic principles. It is specific, real and justiciable. Aboriginal people are not one of the many minorities, but a people with special rights under our Constitution. That is something the government has forgotten.

Under section 91, subparagraph 24, the federal Parliament was given the responsibility for Indians and lands reserved for Indians. It is right in the Constitution. We have always had that jurisdiction. Quite frankly, historically, we did with it what we wanted to do with it. Since 1982, the responsibilities under that section have been expanded and limited because of section 35 of the Constitution, which is generally referred to as the non-derogation clause in the Constitution.

It recognized and affirmed the treaties and rights of aboriginal people. It tells Parliament that it cannot conduct business as it did prior to 1982. Parliament does not have the power to tell aboriginal peoples what they can and cannot do.

That is what this bill does and it is clear that this bill will be struck down at some point by the Supreme Court of Canada.

We expanded the responsibilities because as Parliament, in addition to government, we have a responsibility to consult with aboriginal peoples and to follow certain guidelines in the way we consult. We will hear from the government that it did consult; however, in law and in our relationship with the first nations peoples we must to conduct ourselves in certain ways.

We cannot simply say we sent out a letter, we sent out a notice and we had 10 meetings and that was it. As Parliament, we have a responsibility to engage in a dialogue with the courts to ensure that the laws we pass will not be overturned and that abuses by government are effectively restrained.

Again, I note the words of the Supreme Court in Corbiere with regards to the Indian Act specifically. It stated:

There are a number of ways this legislation may be changed so that it respects the equality rights of non-resident band members. Because the regime affects band members most directly, the best remedy is one that will encourage and allow Parliament to consult with and listen to the opinions of Aboriginal people affected by it.

After it had made that decision in Corbiere, the court suspended a declaration that would have struck down that particular section of the act as invalid in order to give Parliament the opportunity to deal with the issue in a proper consultative manner.

Nothing happened. There was no consultation. The government basically sat on its hands for the next 18 months. We are now left with having to deal with this in a variety of bills that have come before the House or are pending to come before the House, including Bill C-6.

There is no question that we are dealing with fundamental rights under the charter here. Recently, in the Powley decision regarding Métis rights, which came down in the last few months, both Houses of Parliament were told by the Supreme Court that the consultation process was crucial. When the Powley decision was raised at both the Senate committee and the aboriginal affairs committee of this House, members were told by experts that Bill C-6, based on the Powley decision and prior decisions by the Supreme Court of Canada, would not withstand legal and constitutional challenges. Both committees were told that and in spite of that, we still have this bill in front of us today.

At the same time that those witnesses were in front of those committees, they were making proposals for how the bill could be amended and how it could be put into shape.

Once the Powley decision came down, there was a recommendation made to the committee in the other place to set aside the bill for six months to give the first nations, the aboriginal peoples of this country, an opportunity to come forward to involve themselves in the proper consultative process. Instead, what happened was that a handful of experts from the other place, none of them first nations representatives, were given only a few day's notice to deal with what, at this point, had clearly become a complicated assignment. The committee, very briefly and in just over a week, reported the bill back. That was the process that was undertaken. That comes nowhere near, does not even get to first base, if I can use that analogy, in terms of the responsibility to consult.

In a number of decisions, the Supreme Court of Canada has set out more specifically what is required for consultation and the standards that must be met. The first principle it annunciated was in regard to section 35, the non-derogation and treaty rights, and that consultation is mandatory.

For example, in R. v. Horseman the court made it clear that it was no longer morally or politically acceptable for the federal government to modify a treaty right without consultation with first nations and aboriginal groups whose rights were affected. It is absolutely mandatory. That standard has not been met in Bill C-6.

The next point that it makes is that if Parliament is to infringe on aboriginal treaty rights, the court ruled in Sparrow that there must be a valid legislative objective. Even then, it must examine whether the honour of the Crown, and the special trust relationship and the responsibility of the government vis-à-vis aboriginal peoples was at stake. That was not met either.

The court built on that principle in R. v. Nikal stating that there must be as little infringement as possible in order to effect the desired result. So, if the rights are out there and they are exposed, the intervention must be justified and the intervention must be as little as possible. “Little infringement as possible,” are the words that come out of the R. v. Nikal case.

Another point is that fair compensation must be available and the aboriginal group involved must be consulted with regard to the measures being implemented. Given the history of the government, that is not going to happen either. The court went on and added:

It can, I think, properly be inferred that the concept of reasonableness forms an integral part of the Sparrow test for justification...So too in the aspects of information and consultation the concept of reasonableness must come into play. For example, the need for the dissemination of information and a request for consultations cannot simply be denied. So long as every reasonable effort is made to inform and to consult, such efforts would suffice to meet the justification requirement.

That again was not met here. We know that the consultation process here was at its absolute minimal and in some cases non-existent.

In R. v. Marshall the court again commented on the requirement for consultation where rights protected in section 35 might be affected. It stated:

As this and other courts have pointed out on many occasions, the process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi'kmaq rather than by litigation.

J. La Forest emphasized in Delgamuukw v. British Columbia at paragraph 207:

On a final note, I wish to emphasize that the best approach in these types of cases is a process of negotiation and reconciliation that properly considers the complex and competing interests at stake.

That negotiation and reconciliation does not exist in the format that was used to get us to Bill C-6 and certainly will not flow out of it. I have already mentioned the way the commission would be established. It would be open to accusations of bias as being appointed entirely by one side in the negotiations.

When we go back and read that quote, I can hear it before the lower courts and being argued with that terminology, and again used before the Supreme Court of Canada. Ultimately, this legislation will get struck down, if in fact the House proceeds to pass it.

As I said earlier, there are two issues here. First, there is the fact that time allocation has been imposed and the shameful conduct by the government, not only on this bill but historically. It is particularly offensive when dealing with a bill that is so important to the first nations. Second, the consultation process has been either non-existent or a total failure in terms of meeting the standards set down by the courts that we are required to meet.

On that basis, I would urge all my colleagues in the House to oppose this legislation and vote it down.

[Pat Martin, NDP, Winnipeg Centre, MB]

Madam Speaker, I too would like to add a comment and a question to the speech from the member for Perth—Middlesex. I thank him for his thoughtful and well researched understanding of the bill. His comments had more depth and more substance than the comments we heard from the minister when he tried to justify moving closure on this critical bill as it pertains to aboriginal people.

This government's experience and in fact all Canadian governments' experience with aboriginal people can be best summarized as 130 years of social tragedy, and Bill C-6, the way in which this is being treated, only adds to that tragic legacy.

The member mentioned the fact, a very glaring fact in my mind, that the Government of Canada is in fact in a conflict of interest when it tries to be both judge and jury in settling claims against the government. In the absence of a truly independent claims commission, free from the interference and manipulation of the minister, where is the fairness?

To have a longstanding claim, where the aboriginal people are claiming the government is in the wrong, where is the fairness when the government itself is the judge and jury that decides not only the merits of the case but how much money will be the ultimate settlement should it rule that way?

Could the hon. member speak for a minute about that obvious glaring conflict of interest?

[Gary Schellenberger, Progressive Conservative, Perth—Middlesex, ON]

Madam Speaker, I must explain again that I do not know how to reach a consensus. How do we sit down and talk with people when this bill seems counterproductive?

I have various literature stating that Bill C-6 purports to improve the resolution of specific land claims but it fails to do so. Another one states that Bill C-6 does not make the process of resolving claims more efficient. Another one states that no more resources will be committed to addressing the backlog of over 600 existing claims and that the minister can delay any claim indefinitely.

Bill C-6 does not provide for an independent commission but leaves government as defendant, judge and jury. Bill C-6 does not remove the federal conflict of interest but rather entrenches it in legislation. Bill C-6 diminishes justified claims. No claims worth more than $10 million can be dealt with by the tribunal. Funding limits mean only eight claims per year can be settled.

Bill C-6 does not make the claims resolution process more transparent and omits principles of fairness and justice. The minister and his department can frustrate the work of the new claims body and delay progress on claims without providing justification. Bill C-6 is opposed by the Assembly of First Nations.

Finally, on October 20 in the Senate, the Senate's pre-eminent legal expert, commenting on the constitutional flaws of Bill C-6, said that aboriginals were not convinced that the system would be trustworthy.

[Gary Schellenberger, Progressive Conservative, Perth—Middlesex, ON]

Madam Speaker, I thank the hon. member for his question and I agree that in business we always have timelines.

Bill C-6 is big business in that it affects first nations across the country. There should be timelines within the bill.

One thing I have learned is that what always seems to work best is consensus, no matter what we are doing. I think there should be consensus between the government and first nations. They should sit around a table and come up with a document that they can both agree on.

As I look at Bill C-6 and the various statements that I read to members today, it just looks to me like there has not been any consensus here. I think there is a willingness on behalf of the first nations to sit down with the government, but it seems as if the bill is being pushed forward. I just cannot accept things that are pushed on people.

[Gary Schellenberger, Progressive Conservative, Perth—Middlesex, ON]

Madam Speaker, this is the second chance the House has had to make improvements to Bill C-6. We have to realize just how serious the situation is and realize that Bill C-6 does little to improve that situation.

There are about 600 claims in the system now and the number is expected to increase to 1,700. There are significant ways in which Bill C-6 falls short of the current definition of specific claims and it falls short in terms of what was consistently promised and agreed to earlier.

The current definition of “specific claim” refers to breaches of treaties and agreements and is not confined to treaties and agreements that deal with lands and assets.

Currently a claim can be advanced dealing with treaty rights with respect to hunting and fishing. Cases have arisen in which the Indian Claims Commission has dealt with that kind of case. The Bill C-6 definition excludes those kinds of treaty breaches. There is an even more devastating omission. I cannot understate the importance of this because failure to recognize this kind of claim would destroy some first nations communities.

Many first nations communities were unilaterally promised that the crown would give them reserves. There are first nations whose ability to have any kind of land base or quality of life depends on the fulfilment of a unilateral undertaking.

The Supreme Court of Canada said in Guerin v. The Queen that a fiduciary obligation leading to the enforcement right, in other words a specific claim, could include a unilateral undertaking. The Supreme Court of Canada said that this was a way in which a specific claim might arise. This is excluded from the definition in Bill C-6. That was never discussed by the joint task force. The federal AFN joint task force definition of specific claim included promises to provide lands or assets by a unilateral undertaking. The federal government had agreed, but Bill C-6 dishonours that agreement.

Why is the federal government so intent to walk away from a commitment? To include a unilateral undertaking does not mean that every unilateral undertaking would become a specific claim. We still have to show that it is a legal obligation. There is no risk to the federal government of a new category of claims suddenly being created. Only if it is a legal obligation that is being breached can the unilateral undertaking give rise to a claim. We would not be adding to the category of federal liability, but we would not be excluding it under the joint task force definition.

Even though the House has passed Bill C-6, these amendments from the upper chamber give us an opportunity to point out these deficiencies which can be fixed.

The definition in Bill C-6 excludes a category of claims. What is the practical significance? Potentially one-third to more than one-half of specific claims might be excluded. British Columbia and Quebec would be hit hard, hit where it hurts. Do people have a land base or not? Does a group have the basis for a collective existence? This is a serious business and the exclusion from Bill C-6 is unacceptable.

If this were not enough, Bill C-6 has added new exclusions. A claim must be at least 15 years old. Imagine having a grievance against the federal government and being told to come back in 15 years to see if the government will deal with it.

Another exclusion is claims involving rights that arose under a British statute or proclamation before Confederation. We know constitutionally, Canada agreed to assume responsibility for the crown's responsibility, but not first nations which will be turned aside by Bill C-6. When Bill C-6 was in committee before its passage, various members, including Liberals, acknowledged these problems.

Specific amendments were proposed in the House to remedy the problems with Bill C-6 so it could go forward as an improved bill. All these amendments were rejected by a straight majority party vote, with the exception of one Liberal dissenter. The government decided to go against all opposition parties and against all first nations, and now it is wondering why we still want to see improvements in Bill C-6. The issues we are raising have to be addressed if we are to purport that Bill C-6 is fair and just.

I have not addressed another important point, and that is access to the tribunal. There is no problem getting to the commission set up in Bill C-6. Anyone can do that, but so what?

Everyone knew there was a problem at the time of Oka, but since Oka another 400 or so claims have been filed and an additional 60 claims are filed every year, each alleging an outstanding lawful obligation.

The majority of the claims filed are ultimately found to be valid, yet Bill C-6 is setting up a system which can process only seven or eight claims a year because of the cap on both the amount of the award and the limited amount of money given to the commission annually.

Every year there are more claims coming into the system than can be resolved. Continuing a situation in which the vast majority of claimants have to wait in a long line to have access to binding dispute resolution, which means access to the tribunal, will just continue the failures of the past.

There is little value in having access to a commission where one can talk if there is no incentive for the federal government to get serious, to make a decision about the claim and, if it considers it valid, to negotiate the settlement of the claim. Alternate dispute resolution works only if there is an incentive on both sides to make it work. To tell people to wait in line, to tell people to wait 15 years, is not likely to create social justice.

It is not social justice at all to tell claimants that if their claim is over a certain amount, $7 million as the bill stands, and $10 million with the amendments, they cannot have access to the dispute resolution agency. Two claims are reported to have been settled in the last fiscal year, one for approximately $63 million and the other for $6 million. In the previous year, five claims were resolved, four of which were well over $6 million: $17 million, $37 million, $83 million, and $14 million. Only one claim was under $10 million and it was for $40,000.

There is the further problem that a claim may enter the system when it is somewhat under $7 million, but then, because of the delays, the interest brings the amount to above $7 million. The first nation then has to decide to forego the interest, no matter how long it takes, or to start over in court.

The Indian Claims Commission, in its submission to the House committee, said that of 120 claims that it had considered, fewer than 10 were for less than $7 million. Some lawyers have called this fiscal cap draconian. It is of no help to know that the government can raise the limit. It can also lower it. How are we getting away from the conflict of interest if the federal executive freely has the right to determine it just might lower the cap at any time? How can we talk about an independent commission?

If this House were to turn down the proposed amendments, we would have an opportunity to go back to the drawing board, do it right and come up with a new Bill C-6 that would have the support of first nations.

I know I cannot propose new amendments, but I can ask the government for assurances. I would like to know if it will make a commitment to continue the existing Indian Claims Commission if Bill C-6 passes. Will it give first nations the choice of going to the existing claims commission or to the Bill C-6 mechanism?

There is absolutely no reason why the two agencies could not continue to exist and give claimants a choice. It is possible today for a civil claimant to decide whether to file certain claims in federal court or in provincial court. Having the two commissions would allow first nations claimants a similar choice. Then, three or four years from now, we would have proof of whether Bill C-6 is better or worse than the status quo.

We know the federal government has fiduciary duties. Its breaches of fiduciary duties give rise to claims. The primary responsibility of a fiduciary is to avoid conflicts of interest. Now, the same party that is breaching its fiduciary duties is saying, “Trust us. Let us appoint someone to decide if we have breached our duties”. The government should not ask Parliament to give statutory credibility to its conflict of interest. It should not ask Parliament to approve it as judge in its own case.

The problem of lack of independence has been identified over and over again for the last 40 years. Now the government is saying that all these matters are unimportant because the process in Bill C-6 is totally optional and first nations who do not want to use the new agency do not have to use it. That is cynical. We all know the only other option available is court. We know that justice department lawyers do not have to worry about legal costs. We also know that they will use every technical defence available. They will not be interested in justice.

The federal government reserves the right under existing policy to invoke technical defences. That means it can invoke statutory limitation periods. If an individual does not bring a claim within six years or 20 years or whatever, then it is too late and no claim is allowed. How perverse.

We must remember that until 1951 first nations were prohibited by law from engaging a lawyer to lodge a claim. Bill C-6 says claimants will have to wait 15 years before they can file a specific claim, yet most claimants will be statute barred by the time they get to 15 years.

We should all be looking for a system to relieve the government from its conflict of interest and to set up something so it does not have to be judge and jury in its own cause.

The joint task force report recommended joint appointments. The minister now says that the insistence on joint appointments arises because the AFN wants to use this to further its claims to sovereignty. How ridiculous.

The AFN has never said anything in its presentation about Bill C-6 and sovereignty. It has been emphatic about independence. The minister is clouding the issue of independence by blaming the AFN for insisting on an independent process.

It would be so easy for the government. A person could not be appointed without both sides agreeing. An appointee could not be removed without both sides agreeing. A person could not be reappointed unless both sides agreed. What could be more clean and clear than that? Would that not be fair?

However, the government says this simple act of justice would somehow violate the principle of crown prerogative. That may be the government's preference, but this is Parliament. Here in this place, Parliament is supreme. If Parliament wishes to set out a joint appointment process, it has the clear power to do so. There is no constitutional law that will be broken. In fact, Parliament has already appointed joint bodies.

All the modern land claims agreements have dispute bodies whose composition is jointly decided. The federal government has agreed to joint appointments in NAFTA and in the World Trade Organization. There is also the Mackenzie Valley Resource Management Act. In the Meech Lake accord, the government of the day was prepared to have Supreme Court of Canada justices chosen from lists proposed by the provinces.

We could, for example, have a joint task force or committee agree on a list of names and then let the governor in council decide which of those persons would be appointed.

There is no obstacle whatsoever to prevent Parliament from providing the Bill C-6 agencies with independence. Now is the time for the federal government to break the existing pattern of conflict of interest by setting up a genuinely independent body. Now is the time for the federal government to abandon the approach that has been proven to be ineffective and lacking in independence.

This stubborn and wrong approach of the government to stack a commission in its favour is not consistent with the Charter of Rights and Freedoms and not consistent with modern administrative law doctrines. Why are we allowing a bill to be passed that will be successfully challenged in the courts before the ink is dry?

We are at a point in history where the government is about to change. There is no reason why we cannot set aside Bill C-6 and all its imperfections. There is no reason why the government and the AFN cannot return to the table next year and come up with something that could be supported by both first nations and government.

It is a simple political choice for the government: accept something so grossly imperfect today or go back and come up with something much more fair and just in the months to come.

The government has squandered its goodwill. Only a few years ago the government and the AFN were saying that they agreed to everything. Today the situation has deteriorated to the point where first nations across Canada are vigorously opposing the government's decision to proceed with Bill C-6.

This House can help Canada get back on track by using those mechanisms available to us to send Bill C-6 back to a good, joint drawing board.

[Yvan Loubier, Bloc, Saint-Hyacinthe—Bagot, QC]

Madam Speaker, I thank my hon. colleague from Jonquière for her question and her kind words.

The only thing that saddens me today, on top of the motion for time allocation and the deaf ear the government is turning to first nations, is the fact that the first nations are not here today to debate their future directly with us.

What really irks me is that I should be the one to have to speak for the first nations. Inspired by my political commitment to voice the desires and aspirations of the nation of Quebec, I am in a good position to know that I would not like having someone from another nation to speak for me and not having full rights to defend myself in this place.

We have had this problem at the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources. We were discussing the future of an entire nation, while members of this nation watched us non-aboriginals debate their future, and we were forced to defend the aboriginals. That is not right. In 2003, we cannot call ourselves a modern society if we have no legitimate forum where the first nations can express their rights, for instance.

They are not looking for a handout. The first nations have internationally recognized rights. Self-government processes are under way around the world. That is what is required: self-government.

The aboriginal people have the capacity to govern themselves. They are not children. They can have a government like ours. There is no better government than an aboriginal government to defend the future of aboriginal children.

We should be here today defending nations who are not here to defend themselves, to defend their future and that of their children. This makes no sense.

The role of the federal government is not to run them. It has a fiduciary responsibility toward first nations. It must abide by the long-standing treaties with the first nations. It must not force down their throats things they do not want.

They must be given every means to build themselves. This was referred to as a healing process in the Erasmus-Dussault report, the report of the Royal Commission on Aboriginal People.

It is a healing process. It concerns the redefinition of the nations that have been particularly damaged, because they were told that they were not real nations all though Canada's history. As for rebuilding these nations, they must have our help and our support in creating their own government and in governing themselves, and we must not impose anything on them. Most of all, we must respect them for who they are, these first nations. They each have a culture, a language, a form of government. In other words, it is none of our business.

When will the government and its representatives like the parliamentary secretary get it into their heads that the aboriginal nations are recognized as nations? Are we going to tell the Americans what to do? Are we going to tell the French what to do? Why do we take it upon ourselves to impose our choices on the aboriginal nations this way? What is this, anyway?

At the United Nations, the definition of a nation is the same for aboriginal nations as for any other nation, whether it is the Canadian nation, the Quebec nation, the French nation or the American nation. It is the right to self-government. There is also the respect for agreements made hundreds of years ago when the first Europeans arrived here.

Earlier in my speech I mentioned wampum. We should all know what wampum is. It is an almost sacred symbol that we have given our word, both the aboriginal people and the European nations, that we could live as neighbours, that we could live in harmony, but in complete independence.

That is what wampum symbolizes. Wampum is in the form of a beautiful belt. It should be shown around the world and copies distributed. On this belt we see a European ship of the era and a canoe, representing the aboriginal nations, sailing along together. The European ship does not encroach on the space of the first nations' canoe. They are moving together, in parallel, with respect, and in accordance with the terms and conditions agreed upon at the time.

Today, some people are trying to ignore all of that. They want to throw it away and say that the federal government, the Government of Canada—just as it was done 130 years ago with the Indian Act—can continue to park the first nations on reserves, treat them like children, impose whatever conditions it wishes, and slow down negotiations on self-government—the only true negotiations that should be going on in order to enable the first nations to develop and give them every opportunity to do so.

There are first nations communities that were given this opportunity. It is not an opportunity, but a right. Self-government agreements were reached, and look at how prosperous these first nations are today.

In Quebec, we have the example of the James Bay Cree. The first self-government agreement was signed there by Mr. Lévesque. Go see them today. This community is prosperous and has taken charge of its own destiny. Try to impose anything on them. They are a proud people, who insist on exercising their prerogatives as a nation. They are people who have developed, have the skill to do so and a true business sense.

We should stop taking the first nations for something they are not, but instead we keep on seeing bills as idiotic as this one. What sense is there in that? After having tabled the Erasmus-Dussault report a few years ago, after having given so much hope to first nations, what are we doing with bills like this and a policy of confrontation? That is not how we are going to move forward. That is not how we are going to create a peaceful future of coexistence where everyone can prosper and have the opportunity to do so. It is despicable to do things this way.

The new prime minister, who is hiding behind the curtain, said he was against the three bills concerning first nations, including Bill C-6. Where is the future prime minister? Where was he this morning when we voted on the time allocation motion? Where will he be when we vote on Bill C-6? Will he have the nerve to come here and vote in favour of this bill when, from behind the curtain, but publicly, a few months ago he said he was against the bill, as he was against the bill on self-government? I cannot wait to see that.

The Bloc Quebecois was created in the spirit of the first agreement with the James Bay Cree, signed at the time by Mr. Lévesque, the leader of the first Parti Quebecois government. We are motivated by equal opportunity and respect for long-standing treaties and the first nations' inherent right to self-government.

[Yvan Loubier, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I am pleased to speak to this government motion concerning the proposed amendments to Bill C-6.

First, I want to say that this is a sad day indeed for Parliament. This will be remembered as the day the Minister of Indian Affairs and Northern Development and most of the Liberal members voted on a time allocation motion in relation to Bill C-6 on specific claims, a very important piece of legislation.

It is a betrayal of our history, a willful and offensive repudiation of everything our ancestors agreed to with the first nations. It is a betrayal, because when we signed these long-standing treaties, we thought we would then be negotiating equal to equal, nation to nation.

With this morning's time allocation motion, the government is telling us that the spirit in which the Indian Act was implemented over the last 130 years will continue to prevail. We will continue with our paternalistic approach to impose our wishes on first nations.

Furthermore, despite the Erasmus-Dussault report tabled a few years ago, which gave the first nations and aboriginal children hope for their future, this future is once again becoming a dead-end, as it has been for 130 years with the infamous Indian Act. This betrays not only the spirit, but also the letter of what we had agreed upon for decades.

For several years now, this government has preferred confrontation over conciliation and healing in its relations with the first nations. Oddly enough, when the Prime Minister rose just now in the House, I felt ashamed. When the other ministers did likewise, I was doubly ashamed. When I saw most of the Liberal members vote in favour of time allocation, I was even more ashamed to see people deny history and misrepresent it like that.

For the past two days, the Samson Cree community has performed the drum ceremony in front of Parliament. The drums represent the voice and heart of Mother Earth. She is trying to help parliamentarians understand the significance of this bill.

Unfortunately, Mother Earth and the beating of the Cree drums in front of Parliament did not work their magic on the government. It has shut its eyes and ears to the unanimous calls of first nations and the opposition of all the parties to this bill, with the exception of the ruling party.

The minister claimed this morning that he had the support of the first nations. That is not true. I just came from the Assembly of First Nations meeting in Vancouver, which was unanimous in its opinion. All the chiefs are opposed this bill. Why? Because it betrays what is represented by wampum.

Wampum is a symbol of ancient treaties under which the parties negotiated as equals, nation to nation, where no nation was superior to another, but each side had rights. These rights, including the inherent right to self-government and rights under these ancestral treaties, should be respected.

Despite the fact that the first nations have appealed to the United Nations, and we here have been condemning Canada's treatment of the first nations for many years, our pleas fall on deaf ears in this government. We are dealing with a minister who, after a fifteen year career—I hope this is his last year, because he has wreaked enough havoc—is being hypocritical in presenting this bill and saying he has the first nations' support. This is despicable.

It is especially despicable to see the Prime Minister stand up and vote in favour of the time allocation motion. Yet, in 1993, he said, and this can be found in the red book, that given how slowly the first nations' specific claims are being addressed, an independent commission should be set up, not a commission that is entirely controlled by the government and is both judge and party. He talked about an independent commission with independent judges, who could assess the damages, specific claims and compensation with all the independence required for appropriate legal treatment.

This rings hollow because members of the two main institutions in Bill C-6, the first nations specific claims commission and tribunal, will be appointed by the governor in council, in other words cabinet, on the recommendation of the Minister of Indian Affairs and Northern Development, without input or suggestions from the first nations. It is the minister who will make recommendations to cabinet and who, in keeping with the paternalistic approach of the past, will continue to impose rules through people who are both judge and party.

We are far from the recommendations and numerous reports prepared since 1982 that called for an independent commission. We are also far from the 1993 red book promise of an independent commission, with people appointed by both parties, not just one that is both judge and party, but both the first nations and the government.

So we end up with a structure that is totally at the discretion of the minister. He is the one who will appoint people, so of course there will no biting of the hand that feeds. Obviously, then, the minister and the governor in council will have control over these two major institutions. They is being described as impartial, whereas they are totally partial. If people are appointed, it cannot be assumed that they will be torn between the interests of the first nations or the interests of the government, when it is the government that has appointed them. The first nations have nothing at all to say about these appointments.

It can take several years before specific claims are even made, because once again the decision on when to entertain them is the minister's. He is the one to decide whether they are acceptable or not. This is a mechanism put in place to slow things down, and God knows how slow the processing of specific claims is at present. There are still more than a thousand under consideration. Since the process was inaugurated 30 years ago, 230 specific claims have been settled. At that rate, it will take 150 years to get to the end of the process.

That is just the existing specific claims, not the ones that will be added later. As the first nations begin to inform themselves about their rights, carry out research and call upon the services of experts to find ancestral treaties, we are starting to discover treaties that give more and more rights to the first nations. What the government does not get, and what the Minister of Indian Affairs and Northern Deveopment does not get, because of his usual arrogance and cynicism, is that the first nations are not looking for charity; they are looking for respect of their rights.

They are seek redress for the numerous wrongs of the past, as well as for loss of part of their land, land that belongs to them. As long as the paternalistic and colonial mindset remains, one that appears to be shared by the minister, the parliamentary secretary and all his colleagues, nothing will be accomplished. The first step must be to recognize that there are rights, that there are treaties that confirm those rights, and that justice must be done.

The minister says that the process will be speeded up. How? No additional resources have been allocated to speed up the processing of these specific claims. There are no new resources. How can he say that the process will be speeded up? How can he say that there will finally be harmony between the parties, when he is ignoring the second party, when he is putting in place a system where he will decide, at his discretion, whether a specific claim is acceptable or not?

He will use his discretionary power to appoint the members of the commission and on the tribunals, but not in cooperation with the first nations.

How can he talk about harmony? I think we have to talk about confrontation instead. This minister is the minister of confrontation. All we can hope for is for this man to leave political life as fast as possible, so that someone else can take his place, someone with more competence, understanding and openness of mind. It takes an open mind to recognize that first nations have rights and that these rights must be respected.

It takes a open mind and also intelligence to know that justice must be done fully and not partially. It also takes intelligence to be sensitive to one's environment and to see that all first nations in Canada, without exception, from sea to sea to sea, as the Prime Minister likes to say, are against Bill C-6, as well as against Bill C-7 on governance. All first nations also had the opportunity to express their views on Bill C-19 a month ago. The great majority voted against Bill C-19.

What justification does the minister have, except to advance his personal agenda? This personal agenda is not the future of first nations, or the future of first nations children faced with educational and multiple addiction problems. What matters is not the future of the minister. We could not care less about his future. What matters to us is the future of first nations, and that of first nations children. The future of these children is not very bright. But the minister does not care.

What saddens me this morning it to see that, following the Erasmus-Dussault report, there was great hope. Since the negotiations on self-governance have gathered some speed a few years ago, there has been great hope. But this kind of bulldozer attitude, using time allocation to have a bill that on one wants passed, dashes hopes. That is wrong.

This bill contains not only this extraordinary discretionary power given to the minister but also a totally despicable principle that must be rejected. Since when, in a case that has yet to go before a court, are we already in a position to tell in advance that there is a ceiling on the claims and compensation, on the value of settlements for specific claims?

If that happened to us, if we were in court and a government tried to have legislation passed, whereby any non-aboriginal citizen going to court will be told that, unfortunately, even if he has a $25 million claim, the maximum value is set at $10 million, as provided by the Senate's amendment, I think that we would say that there is has been a miscarriage of justice somewhere. We would not have it.

Before a case is heard, claims are made, and the injury and the value of the granted lands or resources has been assessed, no ceiling can be imposed. Before even hearing a case, one cannot say what it is worth. Unless, of course, the case is settled in advance. I think that, in the mind of the minister and his government, all aboriginal cases are settled in advance. That is not improving their well-being, nor is it doing them justice; this is just controlling the expenditures of the Department of Indian Affairs and Northern Development.

I have some suggestions for the minister. If he wants to limit the expenditures of the Department of Indian Affairs and Northern Development, there is a good way to do that. Every year, for some years now, the present Auditor General and her predecessor said there was shameless waste in this department. The billions of dollars they claim they are spending on first nations go into the pockets of bureaucrats and go to wasteful projects. They go for travel abroad to see how other governments deal with their aboriginal peoples. That is where the money goes. There is a system in this department that operates something like the mafia, where public servants call the shots and do as they please.

You can try to get a breakdown of expenditures in contracts given by the Department of Indian Affairs and Northern Development Canada to communications agencies, for example, or management firms. You can try to find out who profits the most from the Department of Indian Affairs and Northern Development, besides the first nations. You will see it is not easy. In fact, it is impossible.

I tried to obtain the list of financial management firms who had co-management contracts with a number of reserves across Canada. It was impossible to get it. Why? Because things in this department are hidden. Someone is afraid, and rightly so, that the situation will be revealed, and we will see that it is not the first nations, nor their children, who benefit the most from the billions of dollars in the Department of Indian Affairs and Northern Development, but this is the system, the cronyism of this government.

So far, no one has convinced me that this is not true. I have made repeated calls requesting a breakdown of this department's expenditures and a breakdown of people who have contracts with this corrupt department—let us not mince words. Every time I made such a request, it was turned down.

I mentioned the ceiling that the minister had set at $9 million. The Senate, no more intelligently, set it at $10 million. Great work, great principle, Senate. The problem is the same; not a thing has changed. A ceiling should not be imposed before the case is heard.

If we look at the past 30 years and the 230 specific claims that have been settled, mostly in Saskatchewan, we see that the average is $18 million. And that is not direct compensation, what with all the time this takes at the Department of Indian Affairs and Northern Development with the current process, which is not going to change, because there are no supplementary resources. It takes several years before a case like that is settled. The $18 million also includes interest and legal fees, it is not the net amount given to first nations.

Consequently, justice is only partially done. Based on our legal system, this is a constitutional state. Either justice is done or it is not, it cannot be done partially.

Earlier, the minister said that we are the only country in the world to have this type of tribunal for specific claims. I can see why. There is not a civilized or industrialized country in the world, in 2003, that would want to implement a system where rights are denied to the first nations and where justice is done partially instead of fully. I can see why there are no such examples.

For the past several years, the United Nations have singled out Canada for its treatment of the first nations. UN envoys have toured the first nations communities in Canada for several years now, to verify the pitiful state of facilities and things like mildew in houses.

People are ill because the federal government is not doing its job. People are ill because the federal government is not investing sufficient resources to resolve problems related to unhealthy living conditions and unsafe drinking water. We are not talking about Africa, but Canada. Many communities have a problem with their drinking water.

Is it not strange to be dealing with a government in name only? The minister, who is a mere figurehead too, is saying that things will be fixed. At this rate, it will take 150 years to resolve currently pending specific claims. What kind of system is this? What will the outcome be? Hopefully, the minister will not be running in the next election, and we will do our best to see that he does not.

This morning, the minister made statements that were quite unintelligent, to avoid using other words that might cause the Chair to force me to withdraw my remarks, since I sincerely and honestly believe it. The minister said that if the first nations are not satisfied, they can go through the regular courts. Well. There is the Department of Indian Affairs and Northern Development, the minister's discretionary power, the discretionary power of the Minister of Justice, and a whole bunch of lawyers who will fight the first nations to ensure they are cannot resolve their specific claims.

For all these reasons, I am ashamed today to be here in Parliament with my colleagues opposite who voted to impose time allocation on this bill. This bill was unanimously rejected by the first nations, since it will lock us, over the next few decades, into legislation that is strangely reminiscent of the Indian Act. This is legislation harks back to colonial times, which does not make sense. This is 2003, not 1810.

[Maurice Vellacott, Canadian Alliance, Saskatoon—Wanuskewin, SK]

Mr. Speaker, you will understand that my feelings are considerably hurt by the fact that there were members across the way who did not like to hear me speak yesterday. I thought I was doing a good job in bringing forward some significant points. However, sometimes in this place very brutal measures are brought to bear, as just happened in the vote, with something that needs much more debate in the House in terms of improving Bill C-6.

Bill C-6 is no improvement over the present claims body. I differ with the minister. I do not think we will see the minister standing up in the House to say that the bill has done a much better job. In fact, contrary to what the minister said, there are a number of members within his own party, and most notably senators who were making the point and I will indicate some of that now in reading from the Senate record.

I also give notice that I will be giving substantial time to other members today. Much more significant things could be said in respect to why the bill is not a good one, why it is badly flawed and its many defects. However, I will allow others to make those points in the course of the day through to the vote at the end of the day which has been pushed forward by the government by way of closure.

Some of the other material that I referred to in the past is from an insightful document written by Leigh Ogston Milroy, called “Towards an Independent Land Claims Tribunal: Bill C-6 in Context”. I will not have the time to make a substantive reference to that but it is there for people's reading and I suggest that people do read the essay.

I want to put on the record some comments from Liberal Senator Serge Joyal. This is what Senator Joyal had to say on the record in the Senate in reference to at least one aspect of the tribunal part of Bill C-6:

In this bill, we have a proposal to establish a tribunal. A tribunal is a court of justice; it is an independent body. This independent body, according to any legal advisers, must satisfy three criteria. First, it must be financially secure. In other words, it should not depend on a third party for its supply of money in order to function. Second, the members of that tribunal must have security of tenure, which means that they must remain there for a long period of time, to be immune to undue influence.

We see that Bill C-6 is so rife to patronage, to those kind of accusations or allegations. I do not think we have the sense that there is independence at all by way of the appointment process. Then others get to critique after the fact, typically as we do with appointments, railing at the government for the inappropriate appointments that are made.

The senator went on to say:

Second, the members of that tribunal must have security of tenure, which means that they must remain there for a long period of time to be immune to undue influence. In other words, they must not make popular decisions to please the person who has the authority to appoint. We can understand that easily. Third, the tribunal must have institutional autonomy. In other words, it must rule its affairs totally outside any kind of influence.

According to Serge Joyal, those are the three criteria for an independent tribunal. He went on to say:

What is at stake in this bill? In this bill is essentially the constitutional duty to establish a system of adjudication that meets those criteria so that those who go to the court [this tribunal] will have the assurance that their claims will be dealt with properly.

When we apply those three criteria to the bill in question there are some issues pending.

That is his mild way of putting it. I would have stated it a lot stronger, but we will go with that for now. He went on to say:

One is that the judges are appointed for five years--

In a commission it is only three years. It does not even overlap two terms of a government. Judges on the tribunal are appointed for five years--

--and they might be reappointed to that or any other position. That is found in clause 41(7) of the bill. This raises the issue that a person might adjudicate on the basis of an expectation of being reappointed to that position or to another position.

Here we open the door not to a sense of impartiality, but of partiality because of the nature of the appointments and the very short duration of this court in effect, or tribunal set up under Bill C-6.

He went on to say:

That is a very important element because administrative tribunals such as the one contemplated in this bill are presently the object of an investigation by former Chief Justice Antonio Lamer. His report, expected in December--

That is coming up very shortly; we could have waited for that report.

--will analyze the various norms that administrative tribunals must satisfy in order to continue to adjudicate properly, to maintain not only justice but also the appearance of justice.

There are other aspects of this bill that raise problems with regard to institutional autonomy. The bill says, in various aspects, that its people are assimilated to public service. They do not have the autonomy that court personnel should have to remain outside influence.

In terms of financial autonomy, Treasury Board defines the scale of salaries. This is problematic too. As you know, there has been a decision of the Supreme Court in relation to payment of salaries to judges, and the court has established very stringent criteria. We have had to deal with those problems here.

He went on to talk about the fiduciary responsibility. He said:

Hence, the system contemplated in the bill is a very delicate balance between those two conflicting objectives. The mechanism put into place by this bill raises serious questions. We must be sure that this bill will meet the test of the court.

Obviously sprinkled throughout in other comments I cannot read here, he very much tips his hand to indicate that he sees it will not meet that particular test. Senator Joyal went on to say:

Honourable senators, read clauses 41 to 70 and you will realize that this is a real court of justice that is being proposed.

A court, in evaluating the reliability of that system, will apply the norms that are usually operational in a court system. This is important because that guarantees that the aboriginal people will get real satisfaction. If they are not convinced of that, what will happen? All our debates will be for nothing. All of the hours and the long sessions that the aboriginal affairs committee, under the chairmanship of Senator Chalifoux, and the time that other senators will have spent on this bill will be to no avail because the system will not be trustworthy.

And I add as an aside, all the time spent by this place in committee, in this House and so on.

In conclusion he said:

There is no doubt that if we do not reconcile the trust of the first nations people in the system we are putting in place, we will not solve the conundrum that we have found ourselves in for centuries.

I remind all of us here today that this is not comprehensive land claims we are talking about. This is specific claims, where a first nation was promised land of a certain good, fertile quality.

In some cases they were given disastrous swamp land, marsh, nothing better. Is it any wonder then that some of these bands are in the predicament they are in. With no economic development opportunity, they are like third world countries, in very desperate straits because of some sharp dealing, some dishonest dealing by Indian agents back in time. Another case would be where some Indian agent came along and sold off a chunk of a reserve without the proper permission and did not give that money and resource to the band, but pocketed it himself or disappeared in some other way. Who knows?

That is the nature of what Bill C-6 is dealing with in specific claims. As I have said before, it has definitely been long and drawn out, with delays to no end. Justice delayed really is justice denied and we have to acknowledge that.

I have made this marathon speech, although it was not as long as some other speeches in the House. It was my first opportunity in six and a half years here to speak for this length of time. I chose this opportunity because there are major defects and flaws in the bill.

The government in the Senate has acknowledged some of the main points that the Canadian Alliance and some of the other parties such as the NDP and the Bloc have made. We spoke for 45 minutes on Friday and another two hours yesterday because we think there are some major problems with the bill. It will not resolve the specific claims at all. In fact to the contrary, it just adds some more elements of delay, stonewalling and so on, and entrenches it more specifically in Bill C-6.

The few amendments that the senators had the gumption to bring back to this place quite frankly are wimpy ones. They are cosmetic. They are token, no more. We are not much reassured. We would have had more hope of some better work coming out of the Senate in respect of this bill.

As I said before, the Canadian Alliance supports the speedy resolution of specific first nations claims. Specific claims include alleged improper administration of lands and other assets under the Indian Act or other formal agreements.

I will be emphatic in stating that I hope I am wrong. I hope the minister will be right but I have no reason to believe so and he has not provided anything at all to reassure the House or others across the land.

Bill C-6 will not speed up the resolution of specific claims. There are no timelines mandated in the process. The minister made a kind of faint half-hearted attempt to say that the minister had to report back, but he can simply ask for more time. He does not have to give any kind of reason. He can do this indefinitely, on to eternity. There are no specific timelines in terms of the minister having to fish or cut bait and going ahead with this or not. He can keep dragging it out, stalling it indefinitely. That is one of the major problems many people see with this process and with Bill C-6 in this regard.

There are no timelines mandated in the process at all. There is nothing to assure us that it will not go on indefinitely. Built into the bill are numerous opportunities for the government to delay and to stonewall with impunity, with no punitive measures against it. It has utmost immunity with respect to that.

I ask the House and I ask people across Canada, who is standing up for the taxpayer in this new process? Bill C-6 in my view and in the view of many discourages the use of the less costly alternative dispute mechanisms. As we well know, going the route of more costly court cases wastes taxpayers' money. It wastes significant dollars that should be used to resolve these situations with first nations across our country, giving them the due and proper justice that they should have. Who is standing up for the taxpayer? Who is standing up for first nations and finally giving them the proper recompense that they deserve in these cases?

The new claims centre will not be independent. We have talked about that and I wanted to state that once again on the record. All adjudicators and commissioners will be appointed by the government with some token input from first nations, mostly after the fact. The appointment will be made and then we can make a comment. We can critique it. I can and anyone can. However what is the good of that?

Unlike the joint task force of 1998 that suggested the decent process of having individuals chosen for this particular body, the government instead has thumbed its nose at that. We are going to have all kinds of allegations and suspicions of conflict of interest, partiality and patronage in the process. That will ultimately destroy its legitimacy in the eyes of the first nations people.

We have been urging the Liberal government to take a serious look at the 1998 joint task force report. Considerable hours and a lot of time was put into that report by a good many capable and qualified people who came to some bottom line positions. It is not that they were all pleased on either side, which generally tells us that it had to be a reasonably fair process, but it was something that they could live with down the road and would give it the kind of ability to resolve the outstanding specific claims across the country.

We have been urging the government to go back and look at that. Perhaps somewhere down the road when we have to rewrite a bill because of the mess that this one is in, some of those reasonable recommendations may be brought into a bill in the future which would address what we perceive to be the major flaws and defects of the present Bill C-6.

I cede the floor to others regrettably, lamentably when there was much more I would have said on the bill and pushing back against Bill C-6. In conclusion, it was rather telling as well when the minister was pressed by a member of the New Democratic Party this morning who asked him if he could name one band across the country that supports Bill C-6. There is not one band to my knowledge that supports Bill C-6. I am not naive. I understand that we are never going to have a bill in any area, no less in this area, where all the first nations are jumping on board saying that it is a wonderful piece of work and a good piece of legislation.

It is also very telling when not one band steps forward to say that it is a good bill. Then we should know that we are in trouble and that we have a problem. If we were unable to satisfy even so much as one band anywhere in the country, never mind a significant number or maybe even a majority, then Canadians who are looking at this and viewing it might think this is badly drafted and badly flawed legislation. It is not satisfying anybody but the minister, and he alone, so he can complete his agenda before he walks off into the sunset.

Having said that, I think it is very plain that Canadian Alliance members object to the bill. We have done our very best in standing against this disastrous legislation. It will go down in the Hansard record that we thought it was a problem.

If I am ever proved wrong, I would be more than delighted, but I think my grandkids sometime down the road will look back to read grandpa's words and understand that the bill, as is proposed today, did not solve the problems. In fact it will have created more problems than it possibly could have resolved.

With that, we yield the floor to other good colleagues to continue to make the point of the major disastrous problem with Bill C-6.

[Maurice Vellacott, Canadian Alliance, Saskatoon—Wanuskewin, SK]

Mr. Speaker, this independent claims body that is being set up under the government's bill is anything but independent and the minister knows that. There is token involvement from first nations after the fact, after the appointments are already made. The minister is quite aware of that.

It will not do anything to help breed trust among the parties involved. As well, who is standing up for the taxpayer in the process? The bill before us discourages the use of the less costly alternative dispute mechanisms. We are going the route of more costly court cases time and again, wasting taxpayers' money and those resources that could be applied to first nations.

We have been urging the Liberal government to go back and seriously look at the 1998 joint task force report which had some reasonable recommendations that would address what we perceive to be the major flaws and defects of this bill. His own Liberal senators have acknowledged that. Why does he not seriously consider and adopt into Bill C-6 the reasonable recommendations of the 1998 joint task force report?

[Bev Desjarlais, NDP, Churchill, MB]

Mr. Speaker, I am extremely disappointed that the minister, over the course of his time in working with first nations, has not made a serious attempt to work and partner with first nations.

Canada has proven that telling first nations what to do is not the answer to improving the situation. Listening to first nations and bringing in legislation that they support is what is important. Quite frankly, I have not heard the minister talk about even one first nation that supports this legislation. There are 633 first nations in this country. How many of them support this legislation?

Bill C-6 does nothing to change existing federal policy which has narrowly defined parameters and processes to which all claims must conform and adapt. The minister says there are no parameters. There are, and that is not acceptable.

Bill C-6 is not established to help settle claims but rather to control and limit the government's liabilities. Why does he not be up front and honest? This is not to better things for first nations; it is to make it easier for him.