Bill C-21 (Historical)

An Act to amend the Canadian Human Rights Act

This enactment repeals section 67 of the Canadian Human Rights Act and provides for a statutory review, within five years after the enactment receives royal assent, of the effects of the repeal. It also contains interpretative provisions as well as transitional provisions with respect to aboriginal authorities.

Committee Amendments to Bill C-21--Speaker's Ruling

[The Speaker, Peter Milliken]

I am now prepared to rule on the point of order raised on February 14, 2008 by the hon. Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians concerning committee amendments to Bill C-21, An Act to amend the Canadian Human Rights Act.

I wish to thank the hon. parliamentary secretary as well as the hon. members forArgenteuil—Papineau—Mirabel, Nunavut and Winnipeg South Centre for their submissions on this matter.

In his intervention, the hon. parliamentary secretary indicated that he was seeking a ruling as to whether two amendments to Bill C-21, adopted by the Standing Committee on Aboriginal Affairs and Northern Development, are in order. He argued that these two amendments are beyond the scope of the bill and should not be allowed to stand.

The hon. parliamentary secretary went on to describe the main components of Bill C-21 as follows: a provision for the repeal of section 67 of the Canadian Human Rights Act, a statutory review provision and, finally, a transitional provision with respect to aboriginal authorities. In essence, he stated—in my view, correctly—that the principle and scope of the bill therefore relate to the repeal of section 67.

In his submission, the hon. parliamentary secretary further contended that in reviewing the legislation which has received the approval of the House at second reading, committees are limited to making amendments that respect the principle and are within the scope of the legislative proposal. Here as well, the Chair shares the view expressed by the hon. parliamentary secretary.

However, before going further, it is perhaps useful to review what the two contested amendments seek to achieve. The first is a non-derogation clause added as a new clause 1.1. This amendment indicates that the repeal of section 67 of the Canadian Human Rights Act shall not be construed so as to abrogate or derogate from existing aboriginal treaty or other rights or freedoms that pertain to the first nations peoples of Canada and goes on to list certain rights or freedoms.

The hon. parliamentary secretary argues that this amendment adds a new purpose to the bill and is therefore beyond the scope of Bill C-21.

The second amendment that is in dispute is an interpretive clause added as a new clause 1.2. This clause mandates that in relation to human rights complaints, the act be interpreted and applied with due regard to “first nations legal traditions and customary laws”.

This amendment was ruled by the chair of the committee to be inadmissible because it was beyond the scope of the bill. Following a successful appeal of the chair's ruling, the amendment was subsequently adopted by the committee.

In her submission, the hon. member for Nunavut expressed the view that these amendments represent an improvement to Bill C-21, inspired by the desire, in her words, “to make sure that the rights of people are protected”.

The Chair has examined the two amendments in question, as well as the proceedings on this bill in the Standing Committee on Aboriginal Affairs and Northern Development with reference to the text of Bill C-21 as adopted at second reading. There is no doubt that this committee’s lengthy deliberations reflect the seriousness with which members have approached this issue.

In cases such as this one, the Speaker may be asked to review, on strictly procedural grounds, what went on in committee with reference to the correctness of a chair's ruling, or even the overturning of a ruling in committee.

As I explained when the matter was first raised:

...the Speaker acts as a court of appeal, as it were, from decisions of committees in respect of admissibility of amendments for certain purposes that they can be arguably beyond the scope of the bill or beyond the principles of the bill that was sent to committee at second reading.

In this case, I am simply being asked whether or not the two amendments in question are admissible, more precisely, whether the two amendments in question are within or beyond the scope of Bill C-21.

I said earlier that I agreed with the hon. parliamentary secretary that the principle and scope of the bill relate to the repeal of section 67 of the Canadian Human Rights Act. Now, after due consideration of the procedural issues involved, I have concluded that neither of the disputed amendments, namely new clauses 1.1 and 1.2, interfere with that principle.

In the view of the Chair, the two amendments neither restrict nor expand nor conflict with the repeal of section 67 of the Canadian Human Rights Act, which we all seem to agree is the principle of Bill C-21.

New clause 1.1 describes the existing aboriginal rights framework. New clause 1.2 refers to the due regard that is to be given to first nations legal traditions and customary laws in the adjudication of future complaints made possible under the act by the repeal of section 67.

In the words of the hon. member for Winnipeg South Centre, “The bill, as amended, still proposes to repeal section 67 of the Canadian Human Rights Act; it still proposes a review and a transitional period for the said repeal”. In short, neither amendment introduces conditions whereby the repeal of section 67 would not take effect. Rather, both amendments provide guidance of a general nature and in a context specific to first nations.

For these reasons, I find the two amendments to Bill C-21 adopted at committee stage to be admissible. I thank the parliamentary secretary for having raised this matter.

Committee Amendments to Bill C-21

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Mr. Speaker, I rise to respond to the point of order raised on Thursday, February 14, by the Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians concerning two amendments to Bill C-21 adopted by the Standing Committee on Aboriginal Affairs and Northern Development.

Mr. Speaker, it is not my intention to take up too much of the House's time. However, I do feel that it is important to have a couple of items on record before you give your ruling. The parliamentary secretary shared that in his opinion two amendments adopted in the standing committee should be ruled out of order because he felt they went beyond the scope of the bill.

First, I would like to quote from the sixth edition of Beauchesne's Parliamentary Rules and Forms. At page 205 it states in article 689(2):

The committee may so change the provisions of the bill...other than that which was referred. A committee may negative every clause and substitute new clauses, if relevant to the bill as read a second time.

Article 694 on page 206 states:

Amendments may be made in every part of a bill, whether in the title, preamble, clauses or schedules; clauses may be omitted; new clauses and schedules may be added.

Beauchesne's sixth edition also states on page 205 that:

The objects (also referred to as the principle or scope) of a bill are stated in its long title, which should cover everything contained in the bill as it was introduced.

The long title of Bill C-21, as listed on the bill's cover page under the number assigned to the bill, is “An Act to amend the Canadian Human Rights Act”. Therefore, the principle and/or scope are defined in this title, that is, to amend the Canadian Human Rights Act.

The two amendments in question that are contested by the parliamentary secretary are essentially the addition of new clauses: an interpretive clause, clause 1.2, and a non-derogation clause, clause 1.1. The reason for a non-derogation clause is of much importance, as legislation must be consistent with the constitutional obligations of the Crown.

The clause is important to first nations as it is an affirmation of their rights that are set out in the Constitution and ensures that those rights are respected with respect to any new legislation. A non-derogation clause protects established and asserted aboriginal treaty rights recognized in section 35 of the Constitution. The amendment dealing with this non-derogation clause was accepted by the committee chair.

With respect to the interpretive clause, a review of the minutes of the relevant meeting reveals that the chair admitted that he had received mixed advice from “legislative people” as to its admissibility.

These two additional amendments in no way alter the principle or the “scope” of the bill as stated in the long title, that is, to amend the Canadian Human Rights Act. Furthermore, the parliamentary secretary admitted himself that the said bill contained three specific items: first, it repealed section 67 of the Canadian Human Rights Act; second, it provided for a parliamentary review of the repeal within five years; third, it included a transitional provision concerning the implementation of the repeal of section 67.

Again, the two amendments in no way alter these three items as presented by the parliamentary secretary. The bill, as amended, still proposes to repeal section 67 of the Canadian Human Rights Act. It still proposes a review and a transitional period for the said repeal. Therefore, I cannot see how the scope or the principle has been affected.

Mr. Speaker, I respectfully request that you rule these amendments to be in order and allow the House as a whole to express itself when the bill is called for debate at report stage.

[Rod Bruinooge, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I rise on a point of order to seek a ruling on whether two amendments to Bill C-21, adopted by the Standing Committee on Aboriginal Affairs and Northern Development, are in order. I submit that these two amendments are actually out of order because they are beyond the scope of Bill C-21 that was set at second reading.

Bill C-21 was referred to committee after second reading, as we all know, and page 654 of Marleau and Montpetit states:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

I would like to emphasize that the bill was adopted at second reading and had a very narrow scope. Namely, it contained just three specific items: first, it repealed section 67 of the Canadian Human Rights Act; second, it provided for a parliamentary review of the repeal of section 67 within five years; and third, it included a transitional provision concerning the implementation of the repeal of section 67.

Page 661 of Marleau and Montpetit states:

Since a committee may appeal the decision of its Chair and reverse that decision, it may happen that a committee will report a bill with amendments that were initially ruled by the Chairman to be out of order. The admissibility of those amendments, and of any other amendments made by a committee, may therefore be challenged on procedural grounds when the House resumes its consideration of the bill at report stage. The admissibility of the amendments is then considered by the Speaker of the House, whether in response to a point of order or on his or her own initiative.

This passage flows from a Speaker's ruling from 1993 when the members of a committee rejected the decision of their chair, who had ruled three proposed amendments to a bill to be out of order. The amendments were then adopted by the committee and included in the report to the House.

Following a point of order raised in the House in respect of this matter, the Speaker upheld the ruling of the chair and ordered that the three amendments be struck from the bill.

Marleau and Montpetit, on page 662, also cites a 1992 ruling by Speaker Fraser. It reads in part:

“When a bill is referred to a standing or legislative committee of the House, that committee is...restricted in its examination in a number of ways...it cannot go beyond the scope of the bill as passed at second reading, and it cannot reach back to the parent act to make further amendments not contemplated in the bill no matter how tempting this may be”.

The first amendment to which I wish to bring to the Speaker's attention is an interpretive clause, which was added as a new clause, clause 1.2, to the bill. This amendment was ruled inadmissible by the chair because it is beyond the scope of Bill C-21.

During the committee's consideration of this amendment, the member for Nunavut stated:

I don't believe we are asking for too much beyond the scope...I want to take it into the House of Commons for further consideration and see how the ruling would be on that in the House of Commons.

Notwithstanding the acknowledged uncertainty of the member for Nunavut with respect to the admissibility of this amendment, the chair's decision was overruled by the committee, which then adopted this amendment.

The second amendment to which I wish to draw to the Speaker's attention is a non-derogation clause, which was also added as a new clause, clause 1.1, to this bill. While the chair did not raise admissibility concerns with the amendment, this new clause clearly adds a new purpose to the bill and is therefore beyond the scope of Bill C-21.

As I have noted, the purpose of this bill is to repeal section 67 of the Canadian Human Rights Act.

Since the bill is silent on how the Canadian Human Rights Act should be interpreted and applied to first nations, I submit that the amendment to add an interpretive clause and the amendment to add a non-derogation clause exceeds the scope of this bill.

Both of these amendments are beyond the scope of the bill by attempting to prescribe how the Canadian Human Rights Act should be interpreted and applied to first nations people on reserve. Since the purpose of the bill is to bring first nations people the basic human rights that every other Canadian enjoys, I question why the opposition would want to water them down.

What is more disturbing is that the opposition was willing to achieve this goal by overriding a fundamental principle of parliamentary legislative practice. It overruled the chair, who rightly ruled an amendment out of order because it went beyond the scope of this bill. These amendments attempt to bring back much of the intent of section 67, which, of course, the bill proposed to repeal.

I believe this view has been supported by the Speaker in his ruling of February 27, 2007 on Bill C-257, which states:

Given the very narrow scope of Bill C-257, any amendment to the bill must stay within the very limited parameters set by the provisions of the Canada Labour Code that are amended by the bill...They argue that these amendments are admissible for they only make clearer the bill's provisions...However, I fear that their views are precisely what Mr. Speaker Fraser meant in the 1992 ruling...when he warned members against being led into the temptation of amendments not contemplated in the original bill.

On Tuesday, January 29, 2008 in a decision on the admissibility of an amendment that was beyond the scope of Bill C-3, the Speaker ruled:

The amendment was ruled inadmissible by the committee chair on the grounds that it was beyond the scope of the bill. It was contended that on the contrary his amendment was within the scope of the bill because it simply expanded the appeal provision already contained in the bill.

Admittedly, the hon. member’s amendment deals with this same principle, namely the right to appeal, but where it goes beyond the scope of the bill is in relation to the conditions under which the appeal may be made...Consequently, even if the principle remains the same, its scope is clearly expanded.

Any attempt to establish how the Canadian Human Rights Act is interpreted and applied to first nations people should be seen as an expansion of the scope of this bill since this clearly introduces new issues which were not part of Bill C-21 as originally introduced.

I would like to conclude by stating that these two amendments, particularly the nature of the interpretive provision, would undermine the universality of human rights principles embodied in the Canadian Human Rights Act and the very purpose of Bill C-21, which was simply to repeal section 67 of the Canadian Human Rights Act. Clearly, these two are beyond the very narrow scope of the original bill.

Mr. Speaker, if you agree that these amendments are out of order, I would suggest that they be removed from the bill, as you did in your previous ruling on February 27, 2007.

Aboriginal Affairs and Northern Development

[Barry Devolin, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Mr. Speaker, I have the honour to present, in both official languages, the third report of the Standing Committee on Aboriginal Affairs and Northern Development.

In accordance with the order of reference on Tuesday, November 13, 2007, your committee has considered Bill C-21, An Act to amend the Canadian Human Rights Act, and has agreed to report it with amendments.

Aboriginal Affairs

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Speaker, it is shocking that first nations people on reserve are denied the same human rights protections that all other Canadians enjoy.

After 30 years of this discrimination, our Conservative government is set to pass Bill C-21 in order to heal this scar. However, today, in the aboriginal affairs committee, after delaying the bill for more than a year, the Liberals, NDP and Bloc are conspiring to pass amendments that will nullify the effectiveness of this bill.

Former Liberal minister of Indian affairs, Robert Nault, has urged that this legislation be passed immediately. He says that it is a way to prove Canada is serious about equality, but fellow Liberals are not listening.

Yesterday, the Canadian Human Rights Commission released a report urging support for the bill. Yet again, the Liberals are just sitting on their hands.

As an aboriginal Canadian, I am offended by the actions of the Liberals over the last year. I demand that they end their anti-rights agenda and pass the bill without watering it down.

[Chuck Strahl, Conservative, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I will speak slowly for the Liberals.

Right now, here is the situation. First nations on reserve are not covered by the Canadian Human Rights Act. They are the only people in Canada who are not included.

We brought in Bill C-21 which would eliminate this discrimination, but now the opposition parties, the Liberals in particular, have gutted the bill so that first nations would still not have any protection. Then they moved to shut down the debate.

The Liberals claim they support the Charter of Rights and Freedoms, but they will not include first nations in our own Human Rights Act.

It is the right thing to do to have them included. Let us give first nations human rights protection and the time to do it is right now.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Mr. Speaker, on international human rights day, I am astonished at the actions of the opposition.

Government Bill C-21 seems to finally give aboriginal Canadians the same access to human rights as other Canadians.

At last week's aboriginal affairs committee meeting, opposition members voted for an amendment that would water down the intent of the bill. The Liberal member for Winnipeg South Centre, who continues to try to derail this process, then adjourned the committee early to avoid any more discussion on this important issue.

Would the minister explain to the opposition why all Canadians deserve access to human rights and why the legislation needs to be passed now?

[Chuck Strahl, Conservative, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I must say that the hon. member has guts like Dick Tracy to raise this here today.

That is the member who moved amendments in committee that gutted Bill C-21 so that first nations people would not have coverage under the Canadian Human Rights Act. Then, after she said, “I'm flying blind. I have no idea what I'm doing”, she moved to adjourn the debate so we could not get it done and bring it back to the House.

First nations deserve coverage under the Canadian Human Rights Act and that member deserves to give it to them. Why does she not get off her high horse and let first nations have coverage like every other Canadian?

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, this government has been delivering real, tangible results on aboriginal issues. Since coming into office just 22 months ago, we have reduced by half the number of first nations communities with significant water issues.

Sadly, however, the opposition is blocking Bill C-21, our attempt to empower first nations with the same human rights that all other Canadians enjoy. It is are also stalling Bill C-30, which would address the backlog of specific claims.

Can the Minister of Indian Affairs tell the opposition why this bill on specific claims is so important, not only to aboriginals but for all Canadians?

Specific Claims Tribunal Act

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, as I begin, I want to assure my colleague from the Bloc, the member for Abitibi—Baie-James—Nunavik—Eeyou, that the commotion in this corner was New Democrat members defending him against the derision that was heaped on him by Conservative members during his speech. We were listening very carefully to his remarks.

Specifically, this afternoon we are discussing Bill C-30, the specific claims tribunal act. I want to begin by saying that I represent people who live on Coast Salish territory on the Lower Mainland of British Columbia.

The New Democrats believe the legislation is long overdue. The NDP has long called for an independent specific claims tribunal. In fact, it was part of our election platform in at least the last two federal election campaigns and, as party policy, it was reaffirmed at a recent policy convention of the New Democratic Party. We strongly support this and we will support the bill.

We are a little hesitant today because all the experts on aboriginal affairs issues are in committee this afternoon. We think it is unfortunate that the government did not get the timing a little better today to ensure that Bill C-30 would be debated in the House at a time when Bill C-21 was not before the Standing Committee on Aboriginal Affairs in clause by clause discussion. Unfortunately many of our members, our experts in this place from all parties, have to be involved at committee today.

We support the legislation and we will want to work on again at committee, where witnesses will be heard and improvements made.

One of the reasons we support the legislation is we know it has been developed in consultation with first nations. This probably could have been more broad than it was, but it is an important step and we want to acknowledge that this consultative step was taken. We believe this is a good example of how this should be applied more broadly by the government in its relationships with first nations. We believe this might go some way to restoring the nation to nation relationship that existed at the time treaties were signed, and it needs to be part of negotiations of new treaties.

The context of our discussion today is one that is not all that positive, to put it mildly. We come to this discussion today after a long and sad history of discussion of specific claims in Canada. We have seen many reports and many attempts at legislation, even failed legislation, legislation that was passed and then proved unworkable.

This has gone on for many years, beginning with the Indian Act that was in place from 1927 to 1951. It prohibited band funds from being used to sue the government, to take the government to court, to change or to hold the government accountable for agreements and treaties and specific commitments that were made. Thankfully that was changed, but we have seen other things.

I think every decade has seen activity around the question of specific claims. In the 1940s we saw the original recommendation that there be a claims tribunal. Similarly there were recommendations in the 1950s. In the 1960s there was even legislation that died on the order paper, apparently twice. In the 1970s there were more recommendations and attempts. In the 1996 report of the Royal Commission on Aboriginal People, one of the recommendations, on of the specific calls, was for an independent specific claims tribunal. In the 2000s, in the previous Parliament, we saw an attempt to deal with this issue in legislation, which has proven unworkable. Many attempts have been made over the long and sad history of dealing with this issue.

Therefore, we come to this today. We come hopeful that this current legislation will be more successful and will do more to address the specific issues that have been before us for so many decades in Canada.

I want to note that this attempt has been welcomed by first nations. In British Columbia that is also the case. The First Nations Leadership Council, which is comprised of the political executives of the First Nations Summit, the Union of BC Indian Chiefs and the BC Assembly of First Nations, has been optimistic about this process since it was first made public back in the late spring.

In a press release in June of this year, they said that they would welcome an independent body for specific claims that was being proposed and that they were cautiously optimistic regarding the proposals.

That is a good thing and I think we can all be pleased that there is this kind of optimism from the leadership of first nations regarding this process.

The First Nations Leadership Council points out that the specific claims that are being discussed arise from, as it puts it, Canada's breach or non-fulfillment of lawful obligations found in treaties, agreements or statutes, including the Indian Act. It points out that the existing 25 year old federal specific claims policy sets out the process for the resolution of these claims through determination of their validity and subsequent negotiations.

However, we have seen a terrible backlog and a gridlock in that resolution system. Currently there are over 900 specific claims designated as under review by the Government of Canada. It is important to note that almost half of those originate from B.C. first nations. Also, of the more than 300 claims currently at the Department of Justice awaiting legal review, 65% of those originate from B.C. first nations.

Therefore, B.C. first nations have a particular concern for this process. We have seen in reports that have been made, most recently the Senate report that was made in 2006, that B.C. was a particular subject in that report and the uniqueness of British Columbia when it comes to the outstanding specific claims, given that there are so many from British Columbia.

This is something that is of particular importance to first nations in British Columbia and, by the same token, to all people in British Columbia because we are anxious to see the relationship with our first nations restored and these specific claims resolved.

At the time, back in June when this proposal was announced, the leaders of the First Nations Leadership Council made various statements. Chief Shawn Atleo of the BC Assembly of First nations said:

An independent panel on specific claims is long overdue. Given this body will possess the necessary mandate with full decision-making authority and an appropriate level of financial and human resources, we expect they ensure that specific claims are fairly considered and equitably resolved in a timely manner.

That was a very important statement of support for this process that came from Chief Atleo.

Grand chief, Stewart Phillip, the president of the Union of BC Indian Chiefs, had this to say about the proposal. He said:

The Government of Canada acting as both the judge and jury in the specific claims process has been in a clear conflict of interest. Removing this conflict through the creation of an independent body will ensure that we do not have to wait ninety years to resolve the existing backlog of claims. Furthermore, an effective Specific Claims Policy must be fully committed to addressing, and not side-stepping, all types of claims regardless of size and scope.

While showing his interest in this proposal, Grand Chief Phillip also raised some challenges to the process and some issues that he hoped to see addressed by the legislation and, hopefully, if they are lacking, we can address those when this legislation is before the committee.

Back in June, grand chief, Edward John, political executive of the First Nations Summit, said:

We fully support the recommendations of the Standing Senate Committee on Aboriginal Peoples. In particular, we fully agree with the recommendation that First Nations need to be “full partners” with the Government of Canada in the development of legislation and policy to ensure that Canada meets its lawful obligations to First Nations in the resolution of specific claims.

Again, that reiterates a point I made at the beginning of my speech about the importance of that kind of consultation going into legislative proposals that are brought before the House. We are glad at least to some extent that kind of consultation did take place on this legislation.

Those were some of the concerns raised by the First Nations Leadership Council in British Columbia. It does indicate its support for the legislation but it has raised some specific concerns. I know that the New Democratic Party's aboriginal affairs critic, the member for Nanaimo—Cowichan, will be raising those issues at committee and will be working to ensure that witnesses appear before the committee who can expand on those concerns.

One of the specific concerns that arises is the $150 million cap on the value of claims that can be referred to the tribunal for validation and settlement. One of the concerns about that cap is exactly how it will be determined, how the value of that claim will be calculated. There is a concern about wanting to be consistent and wanting to ensure that it best represents the interests of first nations in calculating that amount.

Another concern that has been raised by the B.C. chiefs is the need for more resources to be dedicated to the research, negotiation and settlement of B.C. specific claims which comprise nearly half the claims in the system and 62% of the claims in the Department of Justice backlog.

We have heard that many times from leaders in the aboriginal community but also from the Senate committee that looked at the situation and wrote a report in 2006 called “Negotiations or Confrontation: It's Canada's Choice”. The Senate committee spent considerable time and effort looking at the question of limited resources in the current process.

These are all things that we would want to avoid in the new process: things like the constant turnover of staff, the ever-increasing backlog, the lack of training that researchers have which often leads to the repetition of historical errors, of frustration and inefficiency in the system. Another one of the resource issues is the inability to have inappropriate information sharing among the parties involved.

Those are some of the specific lack of resource issues that we believe need to be addressed in Bill C-30 and in the regulations and implementation that follows from it. Without appropriate resources to do this work, it will not be done well or it will not be done at all perhaps. This is something we will want to make sure is followed up on.

Concerns have also been expressed by the aboriginal first nations leadership in British Columbia about the exact definition of specific claims. Clearly, that is something that will need to be looked at and resolved because there is no sense having a specific claims tribunal process where there is concern about what the definition of those claims actually is.

I think the first nations of British Columbia also have a number of concerns that they will be raising and it is our intention to ensure that opportunity is provided at the Standing Committee on Aboriginal Affairs and Northern Development when it is looking at this legislation.

Another concern is about the appointment of the tribunal and who serves on the tribunal itself. We want to be sure that first nations are represented in that process of appointment. The resolution of these specific claims should not be solely at Canada's discretion. Canada again cannot be put in the position of being judge and jury on these issues at the same time. We need to ensure the independence of this process, which is the intention of this legislation, but we also need to consider the appointment process of those who sit on the tribunal to ensure they are representative of all the parties, are truly independent and can make the best and most appropriate decisions related to these specific claims. That is something else that we, for our part, will be pursuing in conjunction with first nations at the committee.

I think it is important to point out that we need to make progress on these sorts of legal arrangements to settle specific claims. This mechanism has been too cumbersome, too unproductive, has caused too much tension and too much uncertainty and instability in Canada for far too long. We need to ensure we have an effective process for resolving these issues.

In her speech earlier today, my colleague from Nanaimo—Cowichan said that we needed to be aware that having the most just process in this case, the most legal process, the best court process that we can have does not necessarily solve the problem of reconciliation between first nations and Canada. We need to ensure we have an early and honourable reconciliation and avoid endless appeals and endless court processes that may not allow us to live together successfully.

Many experts, including many judicial experts and judges themselves, say that reconciliation cannot be dealt with in a courtroom, which is one of the most confrontational settings that we have in our society.

I hope we will also look down the road to reconciliation and how this resolution of specific claims fits into that broader question of reconciliation between Canada and first nations.

We are looking forward to working on many things at committee. One of the other issues that should be reviewed at the aboriginal affairs committee is the political accord that was also signed at the time this legislation was tabled, the political accord that will deal with claims above $150 million. This legislation only deals with claims under $150 million.

Many issues need to be looked at. There are questions about why those claims are outside of any legislative process. Maybe they should have been included in Bill C-30 or other legislation. I think that is very important.

However, we are glad that this agreement was signed between the government and the grand chief of the Assembly of First Nations, but I do have some questions and I think that there needs to be some further discussion of those issues as well.

I hope we can avoid some of the problems that we have seen in the history of our relationship between Canada and first nations. I hope we can avoid some of the problems we have seen with the Conservative government's failure to recognize the Kelowna accord and the transformative change accord that was signed with the first nations of British Columbia, the Government of Canada and the B.C. government at the same time as the Kelowna accord.

We want to ensure those agreement are honoured. We have supported those agreements here. Some of our concern about not honouring those kinds of agreements goes to the whole context of how we resolve other issues between Canada and first nations. A history of failure to live up to agreements, accords and treaties that we have negotiated does not help us resolve the problems that are before us currently.

The New Democratic Party is looking forward to seeing the legislation go to the committee and we too support getting it there. We do not believe in rushing things off to committee without appropriate debate here in the House of Commons because that is part of the legislative process in this place. We will be doing that and we will be taking care to look at all aspects of the legislation as it comes before the House and as it comes before committee.

Sometimes in this place, when we go gangbusters, we miss important issues and make mistakes. We cannot afford to do that. We are looking forward to getting this to committee, hearing from appropriate witnesses and, hopefully, making this the best possible legislation we can to deal with the issue of specific claims.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, I would like to explain that my riding includes the region of Nunavik, not Nunavut. There is a difference between the two territories, and I would not like to take the place of my Liberal colleague who represents Nunavut.

If I read correctly, this bill applies only to specific claims, but what are specific claims, in lay terms?

We do not need to look very far to learn that they originated in old grievances made by the first nations. These grievances have to do with negotiations Canada is required to conduct under historic treaties or the way the country has managed the money or other property belonging to the first nations, including reserve lands.

It is true that, since 1973, the government has had a policy and a process whereby it settles these claims through negotiation rather than in court.

However, there have been calls for measures to settle these disputes not just since 1973, but since July 1947, when a joint committee of the Senate and the House of Commons made this recommendation:

That a Commission, in the nature of the Claims Commission, be set up with the least possible delay to inquire into the terms of the Indian treaties...and to appraise and settle in a just and equitable manner any claims or grievances arising thereunder.

It was not until 1961 that another joint committee of the Senate and the House of Commons again recommended that a claims commission be set up and Prime Minister Diefenbaker's cabinet approved draft legislation to create a claims commission. However, as luck would have it, this draft legislation was never introduced, because of an election call.

Nevertheless, Prime Minister Lester B. Pearson introduced Bill C-130, entitled the Indian Claims Act, in the House of Commons on December 14, 1963. He was determined to keep up with the true Conservatives. However, even back then, the government neglected to consult with the first nations, and the bill was withdrawn to allow time for consultation.

Another bill with the same title was introduced on June 21, 1965. June 21: what a lovely date. I can hardly wait for it to arrive. All kidding aside, guess what happened: yes, the bill died on the order paper when an election was called.

It was not until 1973 that further action was taken, with the establishment of the specific claims policy I mentioned at the very beginning of my remarks, which has been in effect to this day.

In the meantime, a government report on the administrative process for resolving specific claims was indeed published in 1979, citing conflicting duties and recommending the creation of an independent body which would in all respects be a specialized tribunal.

During the same period of time, the Penner report, published in 1983, called for a quasi-judicial process for managing failed negotiations and the neutral facilitation of negotiated settlements.

In 1990, in a report entitled “Unfinished Business: An Agenda for All Canadians in the 1990's”, a standing committee of the House of Commons reiterated the need for an independent claims body. At the same time, a joint working group bringing together representatives of Canada and the first nations—things are getting better—was looking at creating a permanent, legislative entity with tribunal-like powers, and finally in January 1991, the government created the Indian Specific Claims Commission under the federal Inquiries Act .

This commission was only intended as an interim measure, until a permanent independent body with adjudicative powers could be created. The commission remains in existence today, but continues to have only non-binding powers to make recommendations.

By 1996, the need was ever more pressing. The Royal Commission on Aboriginal Peoples, whose report is commonly known as the Erasmus-Dussault report, conducted extensive consultations with first nations people across the country and recommended an independent tribunal to replace the ISCC and concentrate on land and treaty issues.

In 1998, the efforts of a joint Canada-first nations working group eventually led to Bill C-6, specific claims legislation which, this time, received royal assent, in November 2003. That legislation would have provided binding decision-making powers, including on those compensation amounts, estimated at $10 million, which first nations deemed insufficient. They rejected that. This is yet another fine example of consultation.

Here we are now, in 2007, with Bill C-30, at a time when the political landscape has evolved somewhat, at least I hope so. To my knowledge, there are already particular conditions in Quebec, such as a specific first nations association with their own culture and needs. However, this government seems, deliberately or not, to have forgotten to consult those first nations. If we look at the timing of this bill, it is almost certain that we will have an election before it reaches third reading stage. In the end, this bill will only have served electoral purposes, as was the case with Kelowna, in 2005, with Bill C-130, in 1965, or with the Diefenbaker draft bill, in 1962.

In the explanatory notes that accompany this bill—and that were given to us by the Department of Indian Affairs and Northern Development—it is mentioned that the new approach is based on a wealth of reports, studies and recommendations made by first nations in the past. I emphasize the expression “in the past”. I am prepared to believe that federal officials did consult a few first nations leaders, as they did in 1963 with Bill C-130, for which they had to go back again for another consultation, or in 2003 with Bill C-6, for which they consulted a few first nations leaders. I sense that we will have to hear many more dissatisfied witnesses, as was the case with Bills C-44 and C-21, which is now before us and regarding which the government merely changed the cover page, even though it is well aware of the fact that the various first nations associations are unhappy about it.

I feel a little sheepish for overestimating the Prime Minister's vision and desire for transparency, a transparency that is less relevant than that of Quebec's dark ages under Duplessis, whom he reminds me of, if only because he is so blindly obstinate.

Like my Bloc Québécois colleagues, I will nevertheless support this bill, which will speed up the resolution of specific claims of first nations, a process that has been criticized since the 1940s, as I just described. It would still have to receive royal assent before an election, and all the first nations must agree to it.

How many times in the past have we heard the elected members of this government announce the support of provincial premiers or ministers, organizations or union leaders, when it was completely untrue? As some people would say, credibility goes hand in hand with accountability, which the government seems to be seriously lacking.

I would like to take this opportunity to offer my condolences to the Whapmagoostui community and the family and friends of David Masty, a prominent Cree man who went missing in the waters of Hudson's Bay over the weekend. He was seen as an elder throughout northern Quebec. He was a longtime friend of mine for whom I had a lot of respect.

It goes without saying that we have some concerns about this bill, for example, the fact that a single judge will render a binding decision about a third party's responsibility for paying without that party even being involved in the judgment. Quebec assumes a great deal of responsibility towards first nations, so the other provinces and this government could be more vulnerable to this type of judgment. Could the judge unilaterally require a third party to pay 30% of a first nations claim? Once again, what about the government's fiduciary responsibility?

The Bloc Québécois recognizes that certain specific claims are a strictly federal responsibility. Various House committees have been recommending the establishment of this tribunal for more than 60 years, in order to resolve specific first nations claims, as mentioned at the beginning of my speech, with the expression of concern and regret over the fact that this government is, once again, ignoring Quebec's distinctiveness.

Given the current structure of the judicial appointment process, a contested process if ever there was one, it is worrisome to think that a decision by this tribunal could not be appealed, and this goes for Quebec as well as for first nations, even though the decision is subject to judicial oversight.

This approach will have consequences that first nations really need to consider carefully. No further legal action will be possible. The surrender of land rights will give a clear title to third parties who own the land, and the decisions of the tribunal will resolve, once and for all, all specific claims.

Given that a province, which does not attend a land claim ruling, has no obligation to compensate the first nation, it is possible that the first nation will use the federal decision to demand compensation from that province. What happens, then, to the federal fiduciary responsibility?

The Bloc Québécois has always supported aboriginal peoples in their quest for justice and recognition of their rights. We recognize that the 11 first nations of Quebec are nations in their own right. We recognize that they are distinct peoples with the right to their own culture, language, customs and traditions as well as the right to direct the development of their own identity.

For this reason, aboriginal peoples must have the tools to develop their own identity, namely the right to self-government and the recognition of their rights. The right to self-determination was recognized by the Bloc Québécois in 1993 in its manifeste du Forum paritaire Québécois-Autochtones, in the future country of Quebec where we will also be masters of our own culture and vision for the future.

Like my Bloc Québécois colleagues, I reiterate my support for this bill, which will speed up resolution of the specific claims of the first nations that have been ongoing for 70 years. However, this is contingent upon my not discovering along the way, as is the case with many other declarations, that the declaration is as false as the consultation of first nations.

Naturally we will have the opportunity to examine the bill in the standing committee. I have the privilege of being a member of that committee where we can observe the childish antics of the members of this government, who have demonstrated a chronic inability to accept other people's ideas.

That is perhaps why they continue to call themselves the new government. There are too many issues that have failed to advance. It is like a plumber who has not understood that something other than water may pass through a pipe. Or an electrician who believes that his job is to make wires pass through this same pipe. This leads to confrontations, such as those the government will have on the international stage, which unfortunately would have reflected on the whole country had it not been for the generosity of the Bloc Québécois members who helped their colleagues go to defend Quebec's integrity in Bali.

What a bunch of half-wits we would have looked like without those few sensible persons who, democratically, have an undeniable right, especially because in terms of simple distribution, this government only represents some 30% of the Canadian population! Unfortunately, we have not yet avoided this reputation, which we must acknowledge is not a source of pride.

We have not forgotten this government's stand with respect to the United Nations Declaration on the Rights of Indigenous Peoples. It is enough to leave anyone involved with this bill perplexed.

We in northern Quebec certainly have our own concerns about the last James Bay agreement, which gave the Cree their share, although they are still awaiting the final agreement.

This is somewhat like Santa's sack, which he is holding in front of the beneficiaries, even though he has no intention of loosening the strings and handing out any presents. This is another point that reminds us of the dirty tricks of the Duplessis years.

It is like the hon. member for Roberval—Lac-Saint-Jean, who was elected based on his campaign promise to resolve the forestry crisis. He was elected at the beginning of September. The throne speech was presented at the end of October, but there was no mention of the forestry crisis. Nevertheless, he stood up and voted for that speech. This is not a problem; there are others just like him. In fact, one mayor in my riding stood up to protect this little sinking ship in a sea of Canadians—especially in the shadow of a big Albertan—who would include this topic in the next minibudget. Once again, they did not deliver.

Yet, his big Albertan, as a consolation prize, allows him to blather on, making a few silly remarks on occasion, getting a laugh out of the visitors' gallery, more often than not at his own expense. After all, there are still a few good little French Canadians in Quebec who have not yet managed to separate.

For all these reasons, the Bloc Québécois must remain ever vigilant and uncompromising on behalf of all Quebeckers, aboriginal and non-aboriginal. This always leads us to demand that Quebec officials be consulted in the same way as Canadian officials.

We will therefore vote in favour of this bill, so we may study it and propose amendments, as needed.

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

Mr. Speaker, I think Bill C-30 is not the norm unfortunately in terms of a consultative process. What we have seen under Bill C-21 is the repeal of section 67 of the Canadian Human Rights Act. We heard 20 out of 21 witnesses come before the committee talking about the importance of consultation and any kind of respectful relationship.

We would anticipate that if a piece of legislation is going to have a direct impact on over 600 communities across the country that we would look for an appropriate consultation process. On matrimonial real property, there was a report commissioned by the Conservative government and recommendation 18 in the report laid out a number of steps and a consultation process, a very respectful consultation process.

I would argue again that if this government or any other government were to take consultation seriously, first of all they would develop a consultation process in conjunction with first nations. We cannot develop a consultation process that does not actually include people who are going to be affected in that process.

Therefore, I would encourage the government to look at recommendation 18 of the “Matrimonial Real Property Issues on Reserves” report by Wendy Grant-John.

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

Mr. Speaker, I am very pleased to speak to Bill C-30, the specific land claims tribunal act. This piece of legislation is long overdue. New Democrats have long called for an independent tribunal. I am very pleased to see this piece of legislation come forward, and of course we will be supporting it.

I want to provide a bit of context because I think this is important to Canadians who are listening to this debate.

A document prepared by the Library of Parliament on the specific claims process outlined the long, sad and sorry history of specific claims. It started with the year 1927. I am going to read from that document:

Assertions of outstanding commitments owed by Canada to First Nations groups remained largely unconsidered by government well into the 20th century. From 1927 to 1951, the Indian Act prohibited the use of band funds for claims against government. In 1947, the special Senate-Commons committee struck to examine the Indian Act and other Indian Affairs matters recommended, inter alia, the immediate establishment of a “Claims Commission” “to inquire into the terms of all Indian treaties … and to appraise and settle in a just and equitable manner any claims or grievances arising thereunder.”(1) The 1959-1961 joint committee on Indian Affairs also advocated an “Indian Claims Commission” “to hear the British Columbia and Oka land questions and other matters....

It goes on to say that in 1963 and 1965, the then Liberal government revived a draft legislative initiative which subsequently died on the order paper.

It also states that in 1982, the federal government issued “Outstanding Business: A Native Claims Policy--Specific Claims”. There were a couple of points that the document specifically talks about. It talked about non-fulfillment of a treaty or agreement, breach of an obligation under the Indian Act or another statute related to Indians, breach of an obligation in administration of Indian funds or other assets, and unlawful disposition of reserve lands.

In reserve related circumstances, it talked about failure to provide compensation for reserve lands damaged or taken by the government and clear cases of fraud in acquiring or dispossessing of reserve land by federal employee agents.

In the 2000-01 annual report submitted by the Indian Claims Commission, the ICC observed that the specific claims process remains painfully slow and in gridlock.

The Royal Commission on Aboriginal Peoples, in its 1996 paper recommended the establishment by federal statute of an independent aboriginal lands and treaties tribunal which would replace the ICC and, in the area of specific claims, review federal funding to claimants, monitor negotiations and issue binding orders.

We can see that there is truly a long, sad and sorry history when dealing with specific claims. As many of us know, there has been report after report after report.

A report issued by the other house, called, “Negotiation or Confrontation: It's Canada's Choice” contained a number of recommendations. I want to touch very briefly on two of them. When this bill is before committee we will need to consider some of the questions that were raised by the other house.

The report talks about the fact that the process has limited resources. A number of issues were discussed in terms of the current process and its limited resources. One would hope that this bill would address that. There was a constant turnover of staff that were involved in specific claims. There was a high volume and the very fact that there were insufficient resources meant that the backlog was ever increasing. The process has untrained researchers. In terms of the research, some of the witnesses who came before the committee said that they therefore continually repeat historical errors, fail to have effective management regimes and function inefficiently.

We also know that under the specific claims, and under comprehensive claims as well, but we are only dealing with specific claims on this matter, there was also a lack of sharing of information among the various parties at the table. Mr. Michael Coyle has written a paper on specific claims in Ontario solely but has made some recommendations about how research could be shared among the parties at the table so that different parties are not duplicating research.

In particular, because I am from British Columbia, I want to mention that in the report called “Negotiation or Confrontation: It's Canada's Choice”, some very key pieces of information about British Columbia were raised. In the report it says:

Witnesses from British Columbia were quick to point out that the majority of Specific Claims in the system are from BC. They said the uniqueness of British Columbia’s Specific Claims must be considered in any new strategies aimed at reducing the backlog of Specific Claims. Speaking for the Union of BC Indian Chiefs (UBCIC), Chief Debbie Abbott thought not only that the allocation of resources for resolving BC claims should reflect the number of Specific Claims submitted by First Nations in BC but that there should be an independent body established for BC claims only.

The numbers vary but it is significant that well over half of the specific claims before the current process are from British Columbia. The chiefs from British Columbia have come out in support of this piece of legislation, but they have raised a number of questions, which I am sure the committee will have an opportunity to address.

In a letter that they sent out dated November 23, they indicated that there are a couple of issues they would like addressed, and they talk about the $150 million cap on the value of claims that can be referred to the tribunal for validation and settlement. They say in their letter:

--the $150 million figure for “value” will be calculated based on principles consistent with those set out by the Ontario court recently in its judgment in the Whitefish case.

More resources will be dedicated to the research, negotiation and settlement of B.C. specific claims which compromise nearly half the claims in the system and 62% of the claims in the Department of Justice backlog.

Provincial statutes of limitations do not apply to specific claims.

Water rights, pre-confederation claims and all unilateral undertakings of the Crown must be included in the definition of “specific claims”.

There should be no conflict of interest on claims that have access to the ICC. This means appointments to that committee need to be jointly agreed upon by First Nations and Canada.

There should be no conflict of interest in claims that do not have access to the tribunal, ie. those valued at over $150 million. This means there needs to be a legislated process to deal with those claims and that their resolution not be at Canada's discretion.

Certainly, we know that part of the problems with the current process is that the government ends up being both judge and jury on the specific claims process.

In a recent court decision in British Columbia, in the Tsilhqot'in Nation v. British Columbia, the piece that is relevant to this current piece of legislation is around the process of reconciliation. The justice in the decision said:

Throughout the course of the trial and over the long months of preparing this judgment, my consistent hope has been that, whatever the outcome, it would ultimately lead to an early and honourable reconciliation with Tsilhqot’in people. After a trial of this scope and duration, it would be tragic if reconciliation with Tsilhqot’in people were postponed through seemingly endless appeals. The time to reach an honourable resolution and reconciliation is with us today.

Further on down, the justice stated:

Unfortunately, the initial reluctance of governments to acknowledge the full impact of s. 35(1) has placed the question of reconciliation in the courtroom--one of our most adversarial settings. Courts struggle with the meaning of reconciliation when Aboriginal and non-Aboriginal litigants seek a determination regarding the existence and implications of Aboriginal rights.

Lloyd Barber, speaking as Commissioner of the Indian Claims Commission, is quoted on this issue in the Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back:

It is clear that most Indian claims are not simple issues of contractual dispute to be resolved through conventional methods of arbitration and adjudication. They are the most visible part of the much, much more complex question of the relationship between the original inhabitants of this land and the powerful cultures which moved in upon them.

I think those issues around reconciliation and the relationship between the first peoples of this country and various governments of various political stripes since 1927 speaks to the fact that this is an important piece of legislation and one would hope that during this process, it does lay some framework for future pieces of legislation.

In particular, Bill C-30 was drafted with the support of first nations. The Assembly of First Nations and others worked very closely with the Conservative government to come up with Bill C-30, and that in itself is an important statement, and one would hope would set the tone for future pieces of legislation.

I think the sad and unfortunate part is that the government missed an opportunity to look at Bill C-21 in the same light, particularly in view of the fact that the majority of the committee had called on the Conservative government to use it as an opportunity to look at the repeal of section 67 using a consultative process that clearly the government sees as valuable because it had used it with Bill C-30.

I will conclude by saying that certainly in British Columbia and the rest of Canada the specific claims have been a thorn in people's sides for a number of years because of the untimely and some would argue disrespectful process in terms of how claims have been moved through the system and resolved.

I welcome the opportunity to support this piece of legislation. I look forward to it coming to committee and hearing about how it can be implemented in a timely fashion. I look forward to more detail around the political accord because of course some of the mechanics of the bill are happening outside of the legislative process.

I hope that the details around the accord will be put forward in detail with appropriate resources. For example, on appointments to the tribunal, I understand there is a process in place, but the NDP has called on the importance of making sure that first nations are represented in that process.

I look forward to the speedy passage of the bill and the New Democrats will certainly be supporting it.