Bill C-30 (Historical)

Specific Claims Tribunal Act

An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts

This enactment establishes the Specific Claims Tribunal, the mandate of which is to decide issues of validity and compensation relating to specific claims of First Nations, after their submission to the Minister of Indian Affairs and Northern Development. The enactment also makes consequential amendments to other Acts and repeals the Specific Claims Resolution Act.

An Act to establish the Specific Claims Tribunal

[Some hon. members]

Good question.

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

Members opposite say that was a good question, Mr. Speaker. I would say it was a disrespectful question.

I would tell the member opposite to go back and view the TV coverage and the coverage that went on at Kelowna. It took place in front of millions of Canadians. It took place with all of the leadership of this country agreeing to the progress aspired to for aboriginal Canadians, be they Métis, Inuit, or first nations.

I am astounded that somebody, whom I would assume understands the oral traditions of his community, would stand up and say, “Show me your document”. I say to the hon. member, he should go back, get out the video of what went on at Kelowna that day and go into the archives and look at the 18 months of work that was done. I hear people across the way ridiculing. I want them to say that face to face to aboriginal people who participated in that. I also want to see them marching on the day of action.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I would like to tell my colleague who just spoke that if he asks me the question at a later time, I would be pleased to answer it.

This morning I travelled some 580 kilometres from my riding to Ottawa. We are in Algonquin territory here. I was thinking about how I would broach the subject of Bill C-30, which we will discuss during the next few hours. I do not often congratulate a minister in the House, but today, it must be done.

I would like to congratulate the minister who succeeded in bringing Bill C-30 this far. Everyone worked hard, including my colleague from Winnipeg South Centre, who just spoke and is the Indian affairs critic for her party; my other Liberal colleague from Nunavut as well as my NDP and Bloc colleagues, to ensure that this bill respects the wishes of first nations.

Numerous groups repeatedly told us that first nations want us to listen to them. They want decisions and agreements to be respected. If those are not respected, they want legal recourse so that a court would resolve the dispute between first nations and the federal government.

We must be honest and speak only the truth here in this House. For far too long now, the federal government was both judge and judged in first nations claims. It was the federal government that decided when the negotiations would begin and end, and what aspects they would focus on. First nations peoples were consulted very little or not at all. When the government decided that perhaps the issue should be resolved, it set the parameters for the schedule, the meetings and the central focus of the claim. This way of doing things went on for too long. Since 1947—we are not talking about last week—that is, for more than 50 years, first nations peoples have been asking the federal government to stop being both judge and judged in their comprehensive and specific land claims.

For those watching at home, that is what is happening with Bill C-30. This bill is important for a number of reasons. The first important point for the Bloc Québécois and me is that the tribunal would become independent. In committee, on several occasions, a number of first nations people asked us if it would be possible to appeal a decision rendered by the tribunal. First of all, I have always opposed that idea and I did not want to make it possible to appeal those decisions, so as to prevent the federal government from once again appealing such cases when it was not happy with the decision handed down, thereby delaying the payment of money owing to first nations peoples.

Everyone must understand one thing: first nations peoples have specific claims and have the right—they were here before us—to receive payment for the damages they have suffered.

I will give an example that everyone can understand. In an aboriginal community near my riding, at some point, Ontario Northland—whether it was this company, Canadian National or Canadian Pacific does not matter because this happened all over Canada—decided that the railroad would cut right through the middle of a reserve. The communities living on these reserves or lands that belonged to them were never compensated.

I understand and respect the minister when he says that the federal government cannot give them land because there is none or it is so far away that it would be pointless. Thus, they are trying to find a way to compensate them.

When the value of the strip of land on which the railway runs is established, it is possible to determine the loss to the First Nations and the compensation owed by the federal government. It was the federal government that authorized the railway companies—in the 1800s and early 1900s—to build a railway through their land. Therefore, the federal government must compensate the first nations.

This is a good bill and we will vote for it. The Bloc Québécois supports this bill, which the first nations have been awaiting for 60 years. It is about time that this goes through and that the matter is settled. That is why we will be voting for this bill.

This bill may have some small deficiencies, but overall, the first nations are satisfied. Without being partisan in the least, the government must recognize that, without the cooperation of the opposition parties in a minority government, this bill would not be before the House today. We are in agreement on it.

I hope that I will not hear in this Chamber that the Bloc Québécois has never done anything, is never able to do anything and never will do anything. I can say one thing for certain: with respect to Bill C-30, the Bloc Québécois has played a very active role with the other opposition parties to amend it, to ensure that it fulfills the obligations undertaken and, above all, to ensure that the first nations' claims are taken into account.

I know that some first nations would have liked the limit to be increased by $150 million. I examined all the claims, some of which are specific claims. We need to explain this clearly to the public. We are not talking about land, giving land back, expropriating land or evicting people from their land. We are talking about specific claims. Earlier, I mentioned a railway line that ran through an aboriginal community. In Quebec, there may well be claims pertaining to a hydro line running through a community. The first nations of Quebec will have to invite the Government of Quebec to get involved in cases that might give rise to specific claims.

Let us look at the specific claims that are pending. In Alberta, there are 33; in British Columbia, 306; in Manitoba, 25; in New Brunswick, 12. In Quebec, 68 specific claims have not yet been settled; in Ontario, 111. These numbers are important, and so are the dates of some of these claims. As hard as it is to believe, a number of these specific claims date back more than 20 years. This made no sense, and something had to be done.

That is why this bill was introduced in Parliament. I hope—and that is what I asked the minister—that it can be implemented very quickly, because it is an extremely important bill.

Of course, it will not make up for the lost land. It cannot award land. However, it can at least award financial compensation.

It is easy to understand. I will give another example. When a dam is built to hold back water, the land is flooded. As much as the federal government may want to, it cannot give the land back because it no longer exists; it is flooded. What is flooding the land worth? What is the flooded parcel of land worth? We know the land was probably flooded to regulate the flow of a river or to build a hydro dam, etc. This is part of a number of specific claims.

I can understand and appreciate the minister's response. He answered the opposition member's question quite honestly. The federal government cannot give the land back because it is does not have it. The government can be involved, it can help and ensure that a province can give some of the territory back to the first nations. To do so, there should be a debate on that. For now, what is important is that we take a step forward, as they say.

Since 1973, of the 1,297 specific claims submitted, 513 have been settled. Again, this is since 1973, not 1960 or 1947 or 1950. For most of these specific claims an average settlement of between $15,000 and $1.25 million was awarded. As one might imagine, some claims might be worth a lot more than that. Just consider Caledonia or southern Ontario. Obviously any highway that was built on Mohawk territory—Highway 406, 405 or 401—is worth a lot more. I am talking about billions of dollars. We can continue to debate the situation and the specific claims in other forums.

For now, what is important is that more than 780 files could start to be submitted to the tribunal as soon as this House adopts this bill. That is what the minister and the representative from the Assembly of First Nations told us in committee.

I would like to talk about the tribunal, because it was not clear. I know that the first nations would have liked to play a part in selecting the judges. I have been a lawyer for 30 years, and honestly, I do not know of any lobby groups or groups of any kind that participate in the selection of judges. The goal is to find independent-minded judges. I can understand that judges need a team of researchers so that they are able to make informed decisions. The judges that will sit on the specific claims tribunal must have access to all the necessary expertise, including the experience elders can provide. In fact, elders will probably be called upon to appear before the tribunal to explain, for example, that they have been in a particular location for 200 or 250 years, that they trap in a particular area, and so on.

However, the Bloc was uncompromising when it came to participation in the appointment, selection and designation of the judges who will sit on the tribunal. I think that it is very dangerous to open the doors to different lobbies—with all due respect to my colleagues opposite—whether they are police officers, the military or gay rights groups that may want more gay judges. We would open the doors to almost anyone. It did not make any sense.

That is not to say that our aboriginal brothers' claims do not deserve special attention.

That is not what I am saying. I am saying that superior court judges will be appointed. I also worked on Bill C-31, which concerns the appointment of superior court judges. It is extremely important that the department do its job in order to provide information and explain that when a specific claim reaches the superior court, the judge cannot deal with it overnight, saying “Hurry up. Give me your evidence. Send it to me in writing and I will hand down a decision.” No, the judges who hear these cases must be prepared to take as much time as is necessary.

They will have to take as much time as they need to hand down a decision after hearing all the parties. In my opinion, in a forum such as the specific claims tribunal that will be created, an independent presiding judge who does not owe anyone anything, who does not owe his appointment to a lobby group, is far more neutral when handing down a decision. That is the first thing I wanted to say. There were different opinions on this issue, and I am prepared to discuss it with the first nations that wanted to have a say on this. I will not compromise on this issue. I believe that that part of the bill will remain unchanged, and that is a good thing.

Second, there is the limit of $150 million. We were asked to raise this limit. In my opinion, a limit of $150 million will be sufficient for a great many specific claims. I would say that it will be sufficient for about 80% of claims. At least 50 of the 800 claims are for far more than $150 million, but other claims are for $15,000, $20,000, $1 million or $25 million. The limit for specific claims is $150 million. That is very attractive.

What is also attractive is that the government has allocated a certain amount of money. I hope that this is not an empty promise. I want to remind the minister and the government that in committee, we were told that the government had earmarked $250 million a year for the next 10 years. If my calculations are correct, that amounts to $2.5 billion. The government will have to include that amount in all its upcoming budgets to send a message to the first nations that once the tribunal has handed down a decision, the federal government will pay compensation without delay.

The third issue I want to discuss is the idea that a decision is final and cannot be appealed. I was in litigation for 30 years and, at that time, we had the possibility of going to the Court of Appeal and, if we were not satisfied, to the Supreme Court for very specific cases such as interpretation of the Criminal Code or the Charter of Rights and Freedoms. What seemed important to us here is that the tribunal can rule that a decision is final and cannot be appealed.

Why a final decision that cannot be appealed? I have said it, and I will not shy away from it. Many settlements have been delayed because the government was judge and judged, it set the limits itself and so on. I would be worried that if we had a level of appeal, the government would use it to appeal a case and therefore delay the settlement.

I see that I have approximately 30 seconds left, so I will quickly say that this is a very interesting bill. I will finish by saying that it is about time we were presented with a bill prepared in collaboration—again, in collaboration—with first nations. There is nothing better.

During the week, we will be studying one or two bills, but the debates will be different. Before us now, we have a bill prepared in collaboration with the first nations, and the Bloc Québécois will be supporting this bill.

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

Mr. Speaker, I am pleased to speak to Bill C-30, which is a major step forward in terms of how the government will be handling specific claims. The New Democrats will be supporting the bill as amended.

There are a couple of things I want to cover in my speech. There were a number of very legitimate concerns raised in committee. One would hope that as this legislation unfolds and arrives at its review period any difficulties with this legislation will be addressed.

A number of members have talked about specific elements of the bill. I want to put a historical context around this piece of legislation.

The sad truth is that this legislation is far overdue. In the years from 1927 to 1951 the Indian Act actually prohibited bands from using their funds to make claims against the government. That was the start of a long sad and sorry history. It went on until 1947 when a special joint committee of the Senate and the House of Commons was struck to look at establishing a claims commission. There was the very controversial 1969 white paper which failed and was withdrawn. The Calder decision confirmed that aboriginal peoples had the historic occupation of the land and gave rise to legal rights on the land that survived European settlement. This information is from a Library of Parliament document. Then there were various iterations of a specific claims policy that either died on the order paper or failed in some other respect. We have a long-standing problem of not dealing in an honourable way with specific claims.

On the department's website is an overview of the specific claims action plan. It is stated fairly well. It said:

Specific claims deal with past grievances of First Nations. These grievances relate to Canada's obligations under historic treaties or the way it managed First Nation funds or other assets, including reserve land.

Since 1973, the Government of Canada has a policy and process in place to resolve these claims through negotiations rather than through the courts.

Those negotiations were often bogged down in literally years of back and forth, whether it was research, whether it was finally getting the government to the place where it would actually accept the claim, whether it ended up at the commission only to have the government disregard its recommendations. People spent many years in a frustrating process that did not actually see any outcomes.

During the committee hearings we heard from a number of first nations from coast to coast. A number of concerns were raised. Some of them included what they call the cap, the $150 million limit on claims, the tribunal appointment process and the lack of recognition of a nation to nation status. A number of nations raised this.

I might point out that when we a sign treaty with another country, we think of it as a nation to nation process but when it comes to signing treaties with first nations, that premise of a nation to nation status seems to go by the wayside. I will come back to address the consultation process in more detail and the fact that reserve creation is a problem that is not adequately dealt with in the specifics claims process.

One reason for supporting the bill is simply that the current system is so deeply broken and flawed that it is unworkable. The NDP will support the current bill because it sets time limits to see a faster and more expedited process, which should hopefully result in some justice for first nations.

I was talking about the historical context. There is an important number which members of the House and people watching would be interested in. There was a brief prepared for the committee by Alan Pratt, who is a barrister and solicitor. He went back to 1963 and said:

I will provide the Committee with a rather astonishing fact. In 1963, as you may know, the federal government of the day introduced a Bill which, like the present one, would have created a binding tribunal, to be called the Indian Claims Commission. The Committee will be aware that this Bill did not receive the force of law. Some 45 years later Parliament is still attempting to create the first binding tribunal in Canada, other than the courts, with jurisdiction to address specific land claims.

The astonishing fact to which I refer is not that a tribunal was proposed in 1963 nor that 45 years have passed without achieving the creation of a tribunal (although to many people both acts are startling in themselves), but that in 1963 the Department of Indian Affairs assessed the total cost of settling all outstanding claims in Canada (both comprehensive and specific) at $17,400,000. Most of this was estimated to settle aboriginal title claims in British Columbia, Yukon and Quebec.

Further on he said:

I refer to the 1963 estimate partly to make the point that the cost of settling claims does nothing over time but increase, and increase dramatically.

He mentioned some numbers on how much it would cost. Before taking account of inflation, this estimate was off by a factor of about 1,000, or in other words, 100,000%.

His point was that if governments in 1963 and further on had come to the table in good faith and looked at the honour of the Crown, its fiduciary responsibility, these claims could have been settled in a way that would have been fairer to first nations and to the Canadian people. Costs have now escalated and some estimate it is going to cost billions of dollars to settle these claims. The longer we delay, the more costly it becomes.

When we are talking about costs, we are not just talking about money. We are also talking about the cost to a people suffering from the decimation of their language and their culture, and the social problems facing many reserves. I would expect that the settlement of specific claims would help move forward and preserve language and culture. The sad part of the bill is that there is no recognition around how treaties have not honoured the protection of language, culture and other social aspects.

The matter of consultation has come up a number of times. Article 10 of the UN Declaration on the Rights of Indigenous Peoples states:

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

With respect to consultation, Bill C-30 is certainly a good step forward. It is a positive move in the right direction in that it was drafted in conjunction with the Assembly of First Nations. It is a good first step, but it certainly does not meet the broader test of consultation.

I heard the minister talk earlier about this being a voluntary process, so it is up to individuals to decide whether or not they want to engage in it. However, if people choose not to engage in a specific claims process, their other option is litigation. Litigation is costly, time consuming and has a huge impact on the ability of our first nations to manage their affairs. Once they are involved in the litigation process, they cannot be involved in any other aspect on that specific claim. The NDP suggested that perhaps a particular point of law or a particular aspect of a specific claim could be carved off and go to litigation while the rest of the claim proceeded. That was ruled as an unacceptable amendment.

Let me get back to consultation. The Auditor General and others have talked about the fact that many first nations and many court decisions have encouraged the government to develop an adequate consultation process. The current Conservative government and previous Liberal governments have failed to move forward on developing a consultation process that would meet the tests laid out in court cases.

The Assembly of First Nations could not discuss this legislation with other first nations prior to its being tabled in the House because of confidentiality, which makes perfect sense. Our hands were tied at committee with the number of amendments we could propose because we could not fundamentally change the intent of the bill. A number of amendments were proposed, but they were ruled out of order by the chair. Even if they had been ruled in order, they would have subsequently been ruled out of order on the floor of the House.

When we are talking about consultation, what we really need to do is look at how consultation happens coast to coast to coast. We need to look at how by the time we get a piece of legislation in the House of Commons, it actually reflects the views of people from coast to coast to coast. In this consultation process, the Assembly of First Nations certainly has member nations from coast to coast to coast, but other organizations were excluded, such as the Native Women's Association, the Assembly of First Nations from Quebec and Labrador and other representative groups. There was no mechanism to include them at the table in this consultative process.

What we have is a bill that perhaps does not reflect all of the needs. It is a good reminder to us that first nations are not a homogeneous group of people. First nations have different traditions, different cultures, different language groups, different social customs. It is important when legislation is being developed that some effort is made to reflect those differences from one coast to the other and to the north. Although this process was a good first step, I would urge the government to come to the table and work with representative first nations groups across this country to develop a truly representative consultative process.

One of the other issues that came up was around the transition. According to the department website as of December 31, 2007 a significant number of claims are already in the system. For example, claims under review, there are 607; claims under negotiation, there are 132; and there are also a number of claims that have been concluded or are active in litigation or in the current process. The total number of claims comes to 1,374. There are probably many other claims that are not represented in that number because they are not quite into the process.

One of the questions I raised continuously during the hearings in the committee was around the transitional process. A number of first nations presented briefs. It was not always testimony that came before the committee. Sometimes when a question was asked, people agreed there were some concerns around the transitional process.

In a brief submitted by the Snuneymuxw First Nation, which is in my riding of Nanaimo—Cowichan, it talked about fairness and said that it had submitted a very significant specific claim in February 1993 involving breaches of lawful obligation by the Government of Canada which led to the unlawful purported taking of a 79 acre reserve on Vancouver Island, in Nanaimo, British Columbia:

We have waited over 10 years before the claim was accepted for negotiation on November 26, 2003. There have been over four years of negotiations between the SFN [Snuneymuxw First Nation] and Canada since that time. No settlement has been reached, nor does an agreement seem likely in the near future. Several differences have emerged over the proper legal approach to quantifying damages. These differences have resulted in a wide gulf between the parties.

There is much more detail and I have limited time so I will not read the entire brief, but it went on to say:

We respectfully submit that it is unfair to require Aboriginal Nations who have already put in more than three years at the negotiation table to request permission from the Minister to access the Tribunal.

Again, there were some amendments proposed around this, but they fundamentally changed the scope of the bill and they were ruled out of order. In this particular case, and this is not unusual, there are first nations that have been in the process for years and years. There is a process where, if they do not submit any additional information, they can be fast tracked into a tribunal process but they still could end up with a number of other claimants that have either already been in the system or are new to the system. The argument that I was making around this issue is that for people who have actually got to the negotiation stage and have been negotiating for years, there should be some way to recognize the lengthy period of time they have already been waiting for some settlement of their claim. Unfortunately, that was not possible. As the process unfolds and people pay very close attention to it, and I expect the aboriginal affairs committee will continue to pay close attention to this bill, that adequate resources or perhaps some changes might be made to reflect any problems that arise in that process.

In addition, the member opposite mentioned the problems that were raised by the Okanagan Indian Band, whose claim has now been rejected, but there was another piece of it that I think is quite critical. There were two pieces. One is the cap over $150 million, but the other piece was around the reserve creation. The brief for the committee stated:

It is important to note that the unanimous Supreme Court of Canada in Wewaykum concluded that Canada owed First Nations in British Columbia fiduciary duty during the reserve creation process (which stretched over a period in excess of 60 years). Clearly breaches of fiduciary duty arising during the reserve creation process should form the basis of a valid Specific Claim.

The minister did issue a “comfort letter” around paragraph 14(1)(c), which said not to worry about it, that the question would be clarified and it was not a problem, but there is of course a concern in British Columbia in particular. Over half of the specific claims are from British Columbia, so this has a significant impact on the province that I live in, and part of the concern is that B.C.'s portion of the backlog will be reduced by the wholesale rejection of reserve creation specific claims.

In the case of Wewaykum, part of the problem is that although this decision has come down, there are some concerns around the legal interpretations so people still are unclear about the impact of this decision overall on the reserve creation process.

One of the things that also has been mentioned is mediation: that one of the intents of this piece of legislation is to reach negotiated settlements. Certainly what we heard about it is that mediation is an important aspect of this.

Again, the specific claims action plan from INAC's website talks about the fact that certainly mediation is part of what would be considered, and the current body has a mediation role, but in the future it is unclear what resources will be put in place for that. If mediation is going to be a viable alternative that could help expedite the process, we would expect adequate resources to be put in place. Again I want to refer to Alan Pratt's submission. He says:

The preamble to the Bill states that “resolving specific claims will promote reconciliation between First Nations and the Crown and the development and self-sufficiency of First Nations.” One cannot disagree with this objective. However, the Bill itself establishes a Tribunal whose mandate and procedure is described in almost purely litigious terms. The Tribunal itself is an adjudicative body and is not given any “reconciliation” function.

Elements of this legislation are outlined in the political accord, which has again been referred to, but there are elements of the intent of this legislation and the supporting accord that are left far too vague. If mediation is to be viable, adequate resources need to be put in place to ensure that all parties have access to mediation and that the government is actually willing to come to the table in mediation.

Of course what we have had in other cases in land claims agreements and treaties where mediation has been part of the clause that people could use is that the government has refused to come to the table. Of course I am talking about the previous Liberal government, and I am not sure about the current government's track record, but if mediation is going to be viable, there need to be resources, a focus and an intention, and a body needs to be set up that has the mandate to actually look at that.

I talked briefly about the political accord. It is an important parallel document. Again, as I raised in committee, what we have often seen is that as governments change, political accords get tossed. I am very disappointed that there was not some way to enshrine this.

In conclusion, I want to add that it is very important to ensure that elders are included in taking a look at the rules of how the tribunal will operate in providing advice and guidance. In many first nations communities, it is the elders who continue to provide advice and guidance to the chiefs and councils and the rest of the community. The elders need to be an important part of this function. As well, the government needs to commit adequate resources so that all of the timeframes can be met.

[Todd Russell, Liberal, Labrador, NL]

Mr. Speaker, I thank my colleague for her considered words and also for her work in collaboration with other committee members. I believe it spans all parties to say that we did make diligent efforts to move this through committee in an expedited fashion to bring it back to the House for final debate and see it ratified.

Also, there was much discussion in the committee surrounding this bill but other bills as well, in that if we are going to deal with issues affecting aboriginal people we must deal with aboriginal people but we also must deal with issues in a holistic fashion. This bill may be one piece of the puzzle. It may not be perfect, but it is one piece of the puzzle as we move forward.

We have to talk about the other factors that affect the issues of reconciliation and the issues in making sure that aboriginal people find their true place in Canadian society. I would like the hon. member to comment about how important it is to have a holistic picture as we move forward when it comes to reconciling aboriginal Canadians with the Canadian federation in general about the issues of health, education, economic development and proper infrastructure.

Then I want to ask a more specific question on the bill itself. We probably will have a new piece of legislation, a new act that will come into force at some particular date. It is one thing to have a new act, but this is about implementation. It is about how we move forward with the implementation process. It is about setting some specific timelines to implement the mechanics of this legislation.

In committee, the minister said that the government is going to put new resources into this and is going to charge the department with getting the resources in place, but I would like to ask the member a question. Has there been any evidence that the department is putting new resources in place, increasing its personnel and improving its processes to make sure that what is supposed to happen in the bill actually happens?

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

Mr. Speaker, the member for Labrador asks a very good question and I thank him for his good work on committee. He has raised some very valid points in committee and again today on the floor of the House.

The issue around reconciliation is a much larger issue. It relates to the comments I made around consultation. What we have failed to realize and what we have failed to negotiate around is that nation to nation status. If we came to the table with the intention to recognize nation to nation status and, for example, develop a consultation process on a nation to nation basis, many of the conversations that we have around these particular pieces of legislation would be moot, because they would actually be developed in a respectful way that recognizes, again, the honour of the Crown and the fiduciary duty of the Crown.

With regard to implementation, that is a major concern. I read off the numbers earlier. There are hundreds and hundreds of claims in the current system. That does not even count those waiting to come on board. Without significant resources committed, it simply will be impossible to expedite these claims, and there has not been any evidence of this commitment.

I would urge the government to actually come out and commit. Of course, part of the problem with the bill is that it outlines some of the mechanics but does not tie up any money. Without those kinds of resources, both in research, with first nations in terms of the research, and in the process itself, it simply will not work.

I am hopeful that in a year's time we will not be having a conversation around the fact that this has not moved forward and has not been expediting things because adequate resources have not been allocated. I might add that these resources cannot come from other areas such as housing, education, water or child welfare services. They cannot be reallocated.

In the recent Auditor General's report, she talks about the fact that in regard to child protection services money is being taken from other programs and other priority areas because there simply is not enough in child protection. That cannot happen. It must be new money that is not taken from other programs.

[Catherine Bell, NDP, Vancouver Island North, BC]

Mr. Speaker, my colleague from Nanaimo—Cowichan works very hard at committee to raise the issue of fairness for first nations, and this is just one more aspect that she is working on.

We share Vancouver Island and we have many different first nations bands within our ridings. I have met with many of the chiefs, councils and people in my riding. What they have told me over and over again is that they have been left out of the equation for far too long. Their resources have been given away to logging and mining companies. Their territorial waters have been encroached on by fish farms. They have not seen the benefits of the resources that surround them.

Therefore, I want to ask my colleague to perhaps underline the importance of settling these specific claims, so that first nations can move forward with their treaty negotiations in a way that helps them access some of those resources that they have been left without for far too long.

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

Mr. Speaker, that is a great question from the member for Vancouver Island North. In fact, one of the aspects of this bill is that first nations cannot actually file a claim with the specific claims process for 15 years. One concern that has been raised is that in those 15 years their land can be developed, given away, sold or whatever. That is an important factor in this as well. As we know, a lot can happen over that period of time.

However, with regard to the fact that the specific claims process will provide some certainty, it provides certainty for first nations and also for the non-aboriginal community. Therefore, part of the hope in moving forward with a specific claims process that actually is more expeditious is that it will allow things like economic development to move forward with first nations. It will allow things like revenue sharing to moving forward for first nations. It will allow first nations to have access to the resources on their own lands. The hope is that it would actually benefit the first nations communities in enhancing their living conditions.

[Lloyd St. Amand, Liberal, Brant, ON]

Mr. Speaker, I would like to ask the member opposite, who I know has at least some passing familiarity with claims filed by the Six Nations of the Grand River Territory, if she is not frustrated, as I am, at the relatively limited scope of the legislation that we are discussing.

The reality is that several land claims have been filed or registered by the Six Nations of the Grand River Territory. The most famous, so to speak, has become known colloquially as “Caledonia”. It is actually Douglas Creek Estates. This is a site that was initially occupied or reclaimed or protested on, call it what we will, in February 2006. Negotiations started about three months after that and they continue. This is now two years down the line with no end in sight, quite frankly, and other claims are being negotiated as well.

Simply put, is the member troubled by the limited nature of the legislation? Would that the government had seen fit to broaden the scope or the ambit of the legislation so that all claims would be covered.

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

Mr. Speaker, the $150 million cap is a part of this legislation that is deeply troubling, in part because there is no process outlined for how that will be dealt with.

In terms of the Six Nations, there are a couple of issues. One is that again there is no recognition of the nation to nation status. Also, this claim goes back to 1763 with a royal proclamation. That is where it is grounded, as well as in the two row wampum, which recognized that parallel nation to nation process.

This piece of legislation simply does not deal with the particular Six Nations issues around the Grand River or Caledonia. Again, this calls for the need to put in place the process that recognizes these much larger claims, and a process around comprehensive claims as well, which we have not even touched because that is outside the scope of the specific claims legislation. However, the comprehensive land claims process itself is not moving forward in a way that is going to meet the needs of people.

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, I am very pleased to rise today to speak to Bill C-30 in its final hour of debate. I represent a riding that has many first nations and I am proud to be here and represent their voice on this issue.

As a parliamentarian, I have had the opportunity to hear the speeches from the first hour of debate and hear the minister and witnesses at committee as well. I have been made aware, as most parliamentarians have, that the federal government is very proud of the working relationship between the Assembly of First Nations and itself on the bill. However, I have chosen to oppose the bill, and I will use my time to speak to the reasons for that decision.

One of the primary considerations in my riding has been about the land. I represent a northern riding in Manitoba, which reflects about two-thirds of the province. In fact, we have enormous resource development in our riding. I just received another headline from Manitoba about the impacts of the hydro development.

Many Manitobans are well aware that hydro development has been going on since about 1959, when developing hydro first started. Therefore, we saw the real impacts of resource development in northern Manitoba, primarily over the last 40 to 50 years, which has had a significant impact on the livelihoods of first nations in my riding.

We hear today about the continuing issues around hydro development. York Factory was responding to the replacement of the turbines at one of the dams. Last week I was at Fox Lake First Nation in northern Manitoba, which is situated where the next proposed dam for Manitoba Hydro is, and that is Conawapa.

The minister of sports and culture, who is also the MLA for that riding, was there as well as the national chief to support the community. There has been no response from Canada on the terms of settlement and the province continues to move forward in hydro development. There is a critical role that Canada must play.

However, people seem to believe that the role can be somehow relegated to a moral obligation. It is really critical in this discussion that we talk about the legal obligation and the fiduciary relationship that the federal government has with first nations, in particular when we are speaking about issues related to the land and aboriginal rights inherent in these discussions.

I will read a piece from the report of the Royal Commission on Aboriginal Peoples in which it discusses claims. It says:

—Aboriginal claims are not entreaties against the Crown’s superior underlying title. Aboriginal claims are assertions of Aboriginal rights—rights that inhere in Aboriginal nations because of time-honoured relationships with the land, which predate European contact. Aboriginal rights do not exist by virtue of Crown title; they exist notwithstanding Crown title. They are recognized by section 35(1) of the Constitution Act, 1982, and they protect matters integral to Aboriginal identity and culture, including systems of government, territory and access to resources. Any remaining authority the Crown may enjoy is constrained by the fact that it is required by law to act in the interests of Aboriginal peoples.

I quoted that piece because the riding I represent has an enormous amount of resource development. Yet aboriginal people, first nations within the riding of Churchill, have remained at the lowest end of the spectrum in terms of wealth and at the highest end of the spectrum in terms of poverty. They have been alienated and marginalized from resource benefit sharing. In fact, the disparity between aboriginal and non-aboriginal people in my riding is enormous and shameful.

First nations in my riding have had to spend many decades dealing with the issues around resource benefit sharing and the settlement of specific claims and comprehensive claims. It has been very clear in their struggle that the federal government has not attempted, in its capacity of a fiduciary obligation to aboriginal peoples, to always act in good faith. We see this in the very real situations that first nations are involved in today in terms of their standard of living.

Since contact, the issues involving land and first nations people have been one of the most contentious issues that Canada has faced. Unresolved land claims have long strained the nation to nation relationship between the Crown and first nations in Canada.

Following the 1973 Supreme Court decision in Calder, it was confirmed that aboriginal people's historic occupation of the land gave rise to legal rights in the land that survived European settlement. This ruling forced the federal government to undertake not only first time processes for the negotiation of comprehensive land claims, but also new processes for resolving specific claims.

The 1973 decision was a turning point in the country toward returning traditional lands to first nations. However, the subsequent processes have been anything but smooth sailing.

A national mini-summary issued by the Department of Indian Affairs and Northern Development, Specific Claims Branch indicated that between April 1, 1970 and September 30, 2007 only 284 of 1,366 specific claims advanced had been settled and 853 unresolved claims are in various stages of review by DIAND Specific Claims Branch.

A review of the mini-summary by province indicated that a significant percentage of outstanding claims had been pending for 10 or more years and many had been initiated 15 to 25 years ago. The excessively drawn out claims process has led to a wide array of social and economic turmoil, particularly for first nations people. We have seen protests and unrest, which I regret to say have led to imprisonment and in some cases even injury and death.

For too long, the relationship between the land and first nations people has been undermined and ignored in our country. In fact, I will quote again from the report of the Royal Commission on Aboriginal Peoples, in which it said:

The rights of Aboriginal peoples to lands and resources are perceived as somewhat nebulous claims against the real rights of the Crown. The purpose of a land claims agreement has been to dispose of the claim by extinguishing Aboriginal title and perfecting the 'real' Crown title in exchange for a set of contractual rights and benefits. By contrast, Aboriginal groups say that it is government that should bear the burden of establishing the validity of its claim to the unfettered administration and control of Aboriginal lands, and that the Crown, as a fiduciary obliged to protect the interests of Aboriginal people, should act with propriety.

That is what we are talking about today. This is essentially what underpins this whole discussion. There is a very strong difference of opinion about what the propriety is and whether the federal government is meeting its fiduciary obligation to first nations.

I understand the government has been very proud of the process in which it has been engaged. AFN has very clearly articulated at our committee that the bill should be supported and that it hopes it will move expeditiously through the stages, through to a vote to become law.

Many of my colleagues in the House support the bill, if not most. However, I felt it was incumbent upon me to ensure that I made statements in the House to articulate the position of first nations in my riding on the bill.

Grand Chief Sydney Garrioch of the Manitoba Keewatinook Ininew Okimowin, which represents 30 first nations in northern Manitoba, reminded us at our committee that first nations bodies, including the MKO and the Southern Chiefs' Organization, which represents first nations in my riding on the east side of Lake Winnipeg, had been subject to numerous inquiries and studies.

Joint task forces and even a royal commission repeatedly called for a process to resolve specific claims. However, the process had to specifically be jointly arrived at through the mutual consent of first nations in Canada and be independent of perceived or actual undue influence by the Government of Canada.

A concern about the whole issue of independence was brought up by a number of our witnesses. The Canadian Bar Association also presented as witnesses at our committee. It made sure to elaborate on the point that we needed a independent process to deal with specific claims. It called upon the government to have an independent body review the ministerial decisions to reject claims and to make decisions binding on the federal government. One of the suggestions was that difficult issues might be referred to an impartial lawyer or a former judge. A number of witnesses had the same concern. Another point was that it should be effective in resolving claims. Finally, MKO's position was that it should uphold the honour of the Crown.

It is interesting to note that where I am standing right now, on Parliament Hill. on the floor of the House of Commons, and delivering a speech on land claims, is in fact traditional Algonquin territory, which was never surrendered and compensation was never received for this land.

This fact on its own speaks volumes on the existing land claims across the country. It also illustrates the dire need for appropriate, effective legislation, which is the result of a thorough consultative process and also reflects the fiduciary obligation of the Crown.

Again, in the case of Guerin, it was very clearly stipulated in law by the Supreme Court of Canada that the federal government had a fiduciary responsibility. The government has the duty to act in the interests of aboriginal rights and treaty rights. The government's determination of validity in this matter involves a clear conflict of interest. In fact, the Department of Justice has advised on treaties the same way that it litigates them, and that point was also made very clearly at committee.

What we are trying to do, in developing a specific claims process, is develop a process that would allow first nations and Canada to develop a relationship, as has been advised by the court, as has been entrenched in our constitution, that avoids an adversarial process which we would see in litigation. That is the purpose of this process.

However, we have a framework which will put us back into the same or similar situation of a court structure, using discovery methods similar to court processes.

I would like to mention that on this matter of reconciliation and justice at last, and in terms of trying to find an alternative process to litigation, in the Guerin decision there was a comment made by Justice Wilson. She said, “Equity will not permit the Crown in such circumstances to hide behind the language of its own document”. That is really important because the fundamental piece in terms of a fiduciary obligation is the principle of equity in law.

[The Acting Speaker, Andrew Scheer]

The hon. member will have four minutes to conclude her remarks following question period.

We will move on now to statements by members, the hon. member for Fort McMurray—Athabasca.

The House resumed consideration of the motion that Bill C-30, An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts, be read the third time and passed.

Specific Claims Tribunal Act

[The Speaker, Peter Milliken]

Before question period the hon. member for Churchill had the floor and there are four minutes remaining in the time allotted for her remarks.

I therefore call upon the hon. member for Churchill.

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, when I left off, I was speaking about the principle of equity and how this process and mechanism should fall within that principle of equity, which was referred to and made very clear in the Guerin case, and this is toward resolving a claim.

At the committee stage of this bill we heard recurring comments, including the lack of land as a settlement or even the recommendation of land quantum in the proposed process. The $150 million cap was a serious concern and the appointment process of judges and the denial of non-pecuniary and punitive damages. We heard these concerns over and over again from witnesses.

Another statement was the call for the government to respect its duty to consult. When appearing before the committee on April 16, the Assembly of First Nations National Chief, Phil Fontaine, stated:

It is unfortunate and regrettable that as of yet we have not been able to forge an open, ongoing, reliable, stable relationship with the current government that meaningfully reflects and respects the government-to-government relationship between first nations and the government. We see this as a missed opportunity.

The domestic front has been exposed on the international stage as well. In fact, the government tarnished Canada's reputation as a human rights champion with its staunch opposition to the United Nations Declaration on the Rights of Indigenous Peoples. Our domestic lack has been squarely framed by this international declaration.

At committee countless witnesses expressed concerns that this was extinguishment legislation. Grand Chief Morris Swan Shannacappo of the Southern Chiefs' Organization articulated his concern. He said:

As a group, our people are poor. We suffer from unemployment, poor education, and poor health. We are owed much, but we have not been allowed to partake in the bounty of this country, as originally intended by our treaties. We agreed to share; we did not agree to impoverish ourselves.

In a word, we are hungry. We are starving from the lack of justice. We suffer from a poverty of options, and our children are committing suicide or partaking in other activities that are not normal within our culture and our people.

My fear, as a leader, for my people is that we'll sell our right to the proper share of the bounty due to us in exchange for some food to limit starvation—any food today, in fact.

The grand chief's comments were in response to the government's extinguishment provisions in subclause 21(1) of the bill. MKO has maintained that this is outside the powers of Parliament, to unilaterally extinguish any of the constitutional and protected rights and lands of first nations without the consent of the rights holders, the first nations community, and that this is consistent with Canada's constitutional doctrine and practice. A membership vote may be required to ratify certain specific claims settlements, particularly if the rights of first nations are affected by the proposed settlement.

Relationships are about consistent trust and cooperative partnerships. It is real in the Churchill riding that first nations, all of which are signatories to the numbered treaties, have been alienated and marginalized from the opportunity to participate in the wealth and benefits of the land.

The lack of a non-derogation clause and the premise that this is a voluntary process and therefore requires no duty to consult on behalf of the government and the lack of its fiduciary obligation provides little encouragement that the bill and the government will honour the political accord and the proclaimed reconciliation function of the process.