Thank you, Mr. Chairman.
I did prepare a paper, and I think the honourable members will perhaps be relieved that I don't propose to take you line by line through it, but I thought that in light of the question around the study on the Specific Claims Tribunal process, and on issues relating to a process where claims have a value exceeding $150 million, it might assist the honourable members to have a more fulsome statement of the tribunal's mandate and the process than time permits in an oral presentation.
I'd say first that the members of the tribunal recognize the importance of the government initiative in the advancement of Bill C-30, the Specific Claims Tribunal Act, and that this is in furtherance of an agreement with the Assembly of First Nations that also provides for the residential school apology, the Truth and Reconciliation Commission, and a new dialogue on larger questions around aboriginal rights and interests. It also acknowledges the support for the enactment of Bill C-30 by all parties. This is plainly a significant step toward the reconciliation called for by section 35 of the Constitution Act of 1982.
As a member of the tribunal, as chair of the tribunal, and as a judge, of course, I'm bound by principles of independence and the related duty of impartiality, so I must take great care not to comment on any matter that could come before the tribunal or before any court. The traditions of the judiciary and our constitutional relationship with the legislature and the executive branch say that I must avoid any comment on anything that might have a political aspect.
So with all that said, I'll start by observing that the act provides for court-like processes in the adjudication of claims, but it's notable that the preamble to the act speaks to an objective that some may see at odds with a court-like process, which by its nature is adversarial. I will present a couple of paragraphs from the preamble. In it, we have a statement that “resolving specific claims will promote a reconciliation between First nations and the Crown” and also a recognition of “the right of First Nations to choose and have access to a...tribunal to create conditions that are appropriate for resolving valid claims through negotiations”.
It's with this in mind that the rules of practice and procedure that the tribunal has established in consultation with an advisory committee made up of first nations organizations and representatives, members of Indian and Northern Affairs Canada, including the specific claims branch, and members of the Department of Justice, place a heavy emphasis on active case management of claims brought before the tribunal.
We've built in a rule that integrates mediation into our process. The idea here for the operation of the tribunal in the process is to identify, in the first instance, the core issues that go to the validity of a claim where validity is in issue.
Members of this committee will appreciate that some claims are likely to come to us not as a consequence of the rejection of the claim, but as a consequence of the claim having been in negotiation for three years without resolution. We're anticipating that some claims will require determination of validity and compensation, while others will require determination of compensation alone.
In case management, as with the courts these days, the tribunal will seek to identify the core issues around validity--the core issues going to the determination of compensation--in an initial effort to assist the parties in zeroing in on what really separates them, in the hope that it might better facilitate the negotiated resolution toward reconciliation that's contemplated by the preamble to the act.
This approach also promises a meaningful engagement of first nations peoples in the process, as negotiation and mediation is a process rather different from the adversarial-oriented processes before the court. It's important that some of the court-like processes be available. The act establishes finality where a claim is adjudicated on and is the subject of a ruling. Therefore, procedural fairness and substantive fairness require that full disclosure be made by both parties in the interest of leveling the playing field and ensuring that both parties--in particular, the claimants--can be satisfied that they're proceeding in a process that is fair and transparent.
We're hoping to open the doors in April this year. There are a few things left to be completed before we can do that. We have developed our rules of practice and procedure, but we're required by the Statutory Instruments Act to go through their process to conform our rules to federal drafting standards.
Our rules are examined by officers of the Department of Justice in this process to ensure their conformity with the provisions of our act. That's proving to be a somewhat longer process than I'd anticipated; it has the potential to delay the opening. But I'm confident that the folks in control of that process at the Department of Justice are applying themselves diligently to the task. Since arriving in Ottawa, I've learned a great deal about the pace at which things move through various offices. It's a little different from practising law or being a judge, that's for sure.
Our jurisdiction primarily relates to the taking of reserve lands, either under lawful authority where compensation has not been adequate, or without lawful authority. Part of our jurisdiction extends to matters where it's alleged that there are unfulfilled treaty promises, fraud by persons in positions of trust and authority, and misuse of Indian moneys, as that term is defined under the Indian Act.
Broadly stated, those are the matters that would come before the tribunal after being reviewed in the INAC specific claims branch process. Where the claim is rejected by the minister, it can come to us. After three years of negotiation without settlement, it can come to us.
At this point, it's difficult to say what resources, in terms of tribunal members, support staff, and funding, we'll require once fully operational. The geographic distribution of claims is to some extent reflected in the fact that amendments to the Judges Act that accompanied Bill C-30 gave British Columbia three more Superior Court judges, Ontario, two, and Quebec, one.
Our act provides for six full-time equivalents--a term I was not familiar with until I got to Ottawa--made up of up to 18 judges contributing no more than one-third of their time. I will say that this idea has presented some unique challenges that will need to be worked through in time, as part-time judges of course would have to have their tribunal work integrated with their rota in handling matters before the courts.
As you know--and of course it's central to the matter before you-- the cap on compensation that can be awarded by the tribunal is $150 million. In the specific claims process, this raises some questions that at least I consider interesting.
For matters that come before the tribunal, of course, or through the specific claims branch, as I understand their process, the initial question is whether the claim is valid. If it's determined not to be valid, it's my understanding of the process that they really wouldn't get down to the question of the amount of compensation. Why would they? In many of these claims, to advance the compensation case would be extremely costly. There may be estimates of compensation indicated, but I very much doubt that those estimates would be authoritative in the sense of being supported perhaps by expert evidence on valuation. So in that process, if a claim is rejected, I'm at a bit of a loss to understand how it could be known that its value exceeds $150 million.
Now, turning to the process before the tribunal, I think the starting point for the documentation that the tribunal would have before it is the material that comprises the minimal standard, or meets the minimal standard, that the Specific Claims Tribunal Act provides for in section 16. That section requires claimants who are entering the Specific Claims Branch process to provide documentation that complies with the terms of a minimal standard document established by the minister--and the minister has done that--which of course is a public document.
That minimal standard document does not call on claimants to state the quantum of compensation sought, and in the process before the tribunal, the claimants, at the validity stage, would in my estimation be unlikely to have developed their case on compensation. It seems quite possible to me that a claim might be presented to the tribunal where the first issue is validity, without much of a handle on whether or not the claim is valued in excess of $150 million.
I can envision a scenario where we'd be in the process before the tribunal addressing validity and having it turn out, if validity is established, as hearing evidence that could establish a theory of compensation at a figure exceeding $150 million. Of course, at that point, the claimants would be facing our statute's limit of $150 million, and one might consider the question whether at that juncture the claimants would be pressed to continue in the process before the tribunal, knowing the statutory limit on compensation that can be awarded, or pursue other avenues toward the ultimate resolution of a claim validated by the tribunal.
That concludes my opening remarks. I hope I haven't gone too far over time. I welcome any questions the honourable members may have for me.
Thank you, Mr. Chairman, and thank you for your attention.