This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.
Chuck Strahl Conservative
This bill has received Royal Assent and is now law.
This is from the published bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
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.
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.
Larry Bagnell Liberal Yukon, YT
Mr. Speaker, could the member talk about the amounts, the limits and the amount per individual year, which seems to be insufficient?
Tina Keeper Liberal Churchill, MB
Mr. Speaker, this was a recurring concern. There is a commitment by the government to $250 million per year over a 10 year period, for a full commitment of $2.5 billion. The maximum a claim can be settled for is $150 million. The manner in which the government proposes to proceed is to make payments over a number of years.
There was certainly a lot of concern about the $150 million cap because there are many specific claims that are over and above that. The government laid out that it was within the political accord that this would be dealt with in a political process around the larger claims and other land claims.
However, many of the questions put to the committee were around the fact that it was not in the bill. Why is it not in the bill and why is it that this bill narrows the scope of claims that can be brought forward? It also brought in the release of rights that first nations had to make to participate in this process.
I would also like to mention that within this process the monetary compensation was of extreme concern, as I had mentioned in my speech, so that if a first nation had a specific claim and was participating in the process, the minister would actually have total control and power to decide which claims would go to negotiations, which claims would be rejected and that, within the three year period where there was no response from the minister's office, then it would be deemed rejected. The deemed rejection became another point of concern.
If a claim were to be rejected or deemed rejected, the only opportunity other than litigation would be for the first nation to participate in the tribunal process, which would then deny it compensation in terms of land or non-pecuniary damages and would also be solely in the form of monetary compensation. Those are serious concerns.
Yvon Lévesque Bloc Abitibi—Baie-James—Nunavik—Eeyou, QC
Mr. Speaker, I would like to congratulate my colleague who sits on the committee with me for her presentation and, at the same time, for her diligence in defending the interests of her constituents in this matter.
I would like to ask my colleague if, during her work on specific claims settlement, she saw any other way that first nations, band councils or aboriginal communities could go about obtaining from the territories or provinces what negotiations with this government failed to provide?
Tina Keeper Liberal Churchill, MB
Mr. Speaker, again, one of the deep concerns about this bill was that once a claim was deemed rejected or was rejected, the only other opportunity for the first nation to take it forward was through litigation. I would like to quote what was mentioned by one of the witnesses. Alan Pratt, who is a lawyer, said:
--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.
That is really important because, again, the parameters of the tribunal, in terms of the type of compensation that can be awarded, are not what many first nations believe is within the scope of the fiduciary relationship the Crown has with first nations. The other important aspect of that is that once a first nation moves into litigation, it puts an enormous burden on it to be able to resource that case.
Charlie Angus NDP Timmins—James Bay, ON
Mr. Speaker, I am interested in my colleague's view of what happened with the committee in terms of the bill because some of the first nations I have worked with have always been very concerned about the claims process.
Whether it is a comprehensive claim, a specific claim, or the issue of loan funding which can be dragged out for such a period of time in terms of loan funding, especially when we move to the larger claims issues, all kinds of third parties can then become part of the proceedings. From that moment, the clock is ticking on the first nations' own finances. At the end of the day, many have been very wary about the outcomes because whatever settlements they end up getting, phenomenal amounts have been paid out to consultants and to lawyers because the process has dragged on.
I would like to ask the member about two aspects. First, is there any recognition by the government about the need to play fairly with first nations because they are at such a disadvantage in terms of being able to set the parameters for how the process will go? Second, in regard to the issue of the financial burden that is inordinately always placed on first nations in any kind of negotiations, has there been any discussion about how to mitigate against that?
Tina Keeper Liberal Churchill, MB
Mr. Speaker, the dynamic the hon. member speaks to is a common story among first nations in Canada. It was another common concern that we heard at committee.
The recognition to play fairly is a wonderful way of phrasing it because we have legal principles of good faith and reasonableness. It seems that within the bill the government has not set out the type of support it will give to first nations to prepare their claims and that is cause for serious concern. That was a serious concern of my constituents.
However, the bill does recognize that the costs would be part of the award in the end. It may be awarded against the claimant or for the claimant.
When we look back over the last number of years, particularly going back to the 1998 Task Force on Specific Claims and the Royal Commission on Aboriginal Peoples and every process since, this has been a recurring concern, a priority point, that first nations need the financial resources to prepare their claims and to participate in this process in a just manner.
Yvon Lévesque Bloc Abitibi—Baie-James—Nunavik—Eeyou, QC
Mr. Speaker, as a member of the Bloc Québécois, I joined my colleagues in voting in favour of consideration of this bill for which, as usual, this government did not consult first nations, despite the many reminders it was given during consideration of Bill C-44.
We also had some concerns about some of the consequences to the first nations communities in Quebec and to certain municipalities, not to mention our concerns about the flexibility of the Government of Quebec's involvement.
The lack of consultation caused some disagreement about the procedure and some of the claims that could otherwise have easily been settled in respectful meetings with the nations.
Establishing a specific claims tribunal that makes binding decisions is a progressive step compared to the usual legal games the first nations have been subjected to so far. However, improvements could have been made to how quickly the claims are processed. It will be a shame to have to come back to this in a few years in order to complete this exercise, which requires a lot of energy, time and money from the taxpayers and from the first nations, when there are other matters to deal with.
The current 784 claims could be processed more quickly and a number of others might be added to the ongoing process, even though the Indian Claims Commission itself has not accepted any new claims since the end of 2007.
Of course there has been consultation, but only after much insistence. Furthermore, it is important to note that a number of communities were not consulted because there was not enough time. There has never been enough time to resolve first nations issues.
The most worrisome thing in all this is the possible accumulation of small agreements here and there into increasingly complex legislation. That is caused by this patchwork approach that has no continuity and will only serve as an excuse not to sign the UN Declaration on the Rights of Indigenous People that has been signed by 144 countries.
A number of world leaders are putting Canada in the hot seat and in an embarrassing position on the international stage, which shocks us as representatives of the Quebec nation in particular, to be associated with this country that we do not identify with at all when it comes to its culture, its economic vision or its recognition of individual and collective rights and freedoms.
Despite the repeated calls for consultation that have been made to this government as Bills C-44, C-21, C-30, C-47 and C-34 have been tabled, the government has remained indifferent to what the vast majority of United Nations member states want.
It is truly shameful to see this government in the very small minority that is opposed to this declaration, and it is even more shameful to see members of the governing party from Quebec who lack the courage to go against such a vision.
Hon. members will certainly understand why Quebec is in such a hurry to join the community of nations and why the various communities distrust this government's interference in the legal system.
That is why the chief of the AFN reacted so strongly to the speech the Minister of Indian Affairs and Northern Development gave at the United Nations. I want to quote the various statements the minister made at the United Nations. In a press release, the Minister of Indian Affairs said:
The Government of Canada continues to address a number of key areas for First Nations, Métis, and Inuit peoples, including fundamental human rights through Bill C-2... For 30 years, section 67 of the Canadian Human Rights Act has exempted First Nations communities governed by the Indian Act from human rights protection. We believe this has gone on too long—
I would like to digress a moment and remind this House that Bill C-44, which sought to repeal section 67 of the Canadian Human Rights Act, was vehemently denounced by all the first nations, as well as by the AFN women's council. The first nations were not prepared to welcome a law or be excluded from the Indian Act when they did not have the means to enforce the Human Rights Act, with all the duties it imposes on the various communities.
Canada has long demonstrated its commitment to also actively advancing indigenous rights abroad. But that is not what happened at the United Nations. The minister also highlighted a number of areas where the Government of Canada is making substantial progress: education; resolving specific claims; safe drinking water; protection for women and children; and matrimonial property rights on-reserves
In addition, the minister talked about the important step in the Government of Canada's commitment to the Indian residential school settlement agreement, with the naming of Justice Harry LaForme as the chair of the truth and reconciliation commission. This may be the only good thing this government has done to date. The minister said this:
“Canada remains committed as ever to deliver real results for our Aboriginal population...We believe in moving forward for all Canadians with results that are not simply aspirations or non-binding.”
In response, the national chief of the Assembly of First Nations, Phil Fontaine, had this to say:
The Conservative government’s sustained opposition to the UN Declaration on the Rights of Indigenous Peoples has tarnished Canada’s international reputation and branded Canada as unreliable and uncooperative in international human rights processes. It is clear that the Conservative government’s domestic political agenda is taking precedence over the promotion and protection of human rights for Indigenous peoples in Canada and worldwide. The federal government’s stance is a particularly regressive and limiting basis upon which to advance fruitful Indigenous-state relations in Canada and abroad. It seems that this government has been unwavering in their resolve for a weak Declaration and weak human-rights standards in Canada despite their rhetoric to the contrary.
The Conservative government’s opinion regarding the UN declaration is contrary to widespread legal expert opinion. In an open letter issued yesterday, more than 100 legal scholars and experts noted that there was no sound legal reason that would prevent Canada from supporting the UN declaration. The same conclusion was drawn by human rights and legal experts, ... and experts within the UN system have echoed the same opinion. As a result, Canada is becoming increasingly isolated on the international stage for adhering to an unsubstantiated position against the declaration and for using their position on the Human Rights Council to achieve their own political goals in Canada. Canada cannot cherry pick which international human rights instruments they will choose to respect. These short sighted decisions have serious long term implications for Canada's international standing on human rights.
Moreover, the Conservative government's decisions have failed to address fundamental fiscal inequities in education, housing, health and other social and economic conditions that are the source of the poverty in first nations communities, despite this government’s claims “about getting the job done”. The National Day of Action on May 29 will draw national and international attention on the shortcomings of the federal government to make meaningful investments or address the serious quality of life issues our communities and people face. Such important policy decisions must be made in consultation and with the consent of first nations.
The UN Declaration is a foundational document that sets out “the minimum standards for the survival, dignity and well-being of Indigenous peoples” (Article 43). With an overwhelming majority of 144 states and only 11 abstentions, the UN General Assembly adopted on September 13, 2007 a Declaration which upholds the human, political, spiritual, land and resources rights of the world's Indigenous people. Only Canada, New Zealand, Australia and the United States voted against the Declaration. Australia has since reversed its decision and has declared its support of this unique human rights instrument to advance Indigenous rights in Australia and abroad.
That is what the first nations national chief thinks of our minister's statement at the United Nations.
Immediately after that, Chief Conrad Polson, from Timiskaming, submitted a text to the United Nations Permanent Forum on Indigenous Issues. A press release from the Assembly of First Nations of Quebec and Labrador explained:
Speaking on behalf of the chiefs of the Assembly of First Nations of Quebec and Labrador (AFNQL), he delivered a message about the precarious funding conditions of First Nations education in Canada.
Year after year, the Canadian government continues to close its eyes on the recommendations of more than 35 years of studies, consultations and various working groups, most of which it has contributed to. In refusing to consider these recommendations, the Canadian government keeps First Nations institutions in a highly precarious position.
Our schools and post-secondary establishments are underfunded. A number of our students cannot undertake their post-secondary studies because of a lack of finance.
This is why, on behalf of the Chiefs of the Assembly of First Nations of Quebec and Labrador, I regard it as my duty to denounce this situation loudly and clearly, stated Chief Polson.
“It was important for us to call on the United Nations so that all can be done to put an end to this situation. We must ensure that the wrongs we have suffered do not worsen so we reach the point of no return,” declared Ghislain Picard.
As stated in a press release issued in New York on May 2 and distributed by CNW, at the end of the seventh session of the United Nations Permanent Forum on Indigenous Issues, Mr. Picard declared that Canada had lost all credibility. He attended the session with an important delegation that spoke. At the meetings, they were “able to give a clear picture of first nations' situation in Canada. Today, the Canadian Government has lost all credibility in this respect on the international scene,” he said, reiterating Mr. Fontaine's comments on this subject.
The Minister of Indian Affairs and Northern Development claims he did everything he could for education. The following is from a Radio-Canada article:
For months, Mashteuiatsh, Essipit and Nutashquan chiefs have been trying to meet with the Minister of Indian Affairs...The chiefs want to move forward the negotiations that were the result of the Agreement-in-Principle of a General Nature concerning Innu self-government, signed in 2004 by the government—
The process has been stalled since the appointment [of the minister] last fall.
However, the minister...has declined the offer. “He told us that for the time being, he is not able to meet with us, despite our insistence. We need to speak with the federal government about the main issues of the negotiation,” said Mashteuiatsh Chief Gilbert Dominique.
[The minister] said that he did not have enough time for a meeting that he did not deem necessary.
Gilbert Dominique said that he doubted the Conservatives had any desire to sign territorial agreements with aboriginals when they were elected in 2006. He wonders if the fact that the Innu signed the first-ever agreement in Canada to protect the ancestral rights of an aboriginal community has not put the brakes on the government.
The Innu have called on Premier Jean Charest to try to convince Stephen Harper—
I am quoting the article; I am not naming the Prime Minister—
The Acting Speaker Andrew Scheer
The hon. member must refrain from using the name of a member, even when quoting an article. Please refer to a constituency or title.
Yvon Lévesque Bloc Abitibi—Baie-James—Nunavik—Eeyou, QC
Mr. Speaker, are you asking me to cut the press release short?
The Acting Speaker Andrew Scheer
No, you may use it, but when the name of the Prime Minister appears in the article, you must refer to his constituency or title.
Yvon Lévesque Bloc Abitibi—Baie-James—Nunavik—Eeyou, QC
Fine, Mr. Speaker, I will make a note of it. In any event, I had finished reading the newspaper article.
You have to understand the perverse effects of rushing into passing any law: what is most important for all first nations communities is the insult involved when someone, be it the prime minister at the time or the department itself, promises, hand on heart, to consult them on any bill that might bring changes to their lives, their customs or their culture.
As I said earlier with respect to Bill C-44, we criticized the failure to consult at length, to the point that the government thought it better to reintroduce the same bill, without any real additional consultation, under a different name— Bill C-21. And it has been just as severely criticized as its predecessor.
All of the witnesses who appeared agreed that this was a small step, even if it is unsatisfactory. As with the promises to consult, the people who spoke have doubts about the independence of justice in the process presented. The Grand Chief of the First Nations hesitated a long time before supporting this, and we will have to monitor it closely.
In addition to the tribunal, there are other questions relating to historical treaties: claims excluded from monetary compensation, the evaluation of the specific claims resolution process and the improvements needed, establishing the operating rules for the tribunal’s advisory committee, and looking at access to funding, including federal funding for claimants. On this point, the First Nations Chief has given the government assurances of his cooperation in a joint approach on all of the subjects I have just listed, and in establishing a process for recommending members of the tribunal, while ensuring that the process remains confidential.
A number of witnesses were skeptical about whether their recommendations would be taken into consideration. Unfortunately, history shows them to be right. But moving forward, they are agreeing to give it one more chance. There is the analysis of the tribunal process, of how it is working, to be done every five years.
In reality, with an annual budget of $250 million, the government is not committing to a lot of $150 million claims in a single year.
I am at your disposal to answer questions.
Christian Ouellet Bloc Brome—Missisquoi, QC
Mr. Speaker, first, I would like to congratulate my colleague, who has really painted a very vivid picture of Bill C-30. We can tell how committed he is to this issue.
I would like to ask him two questions. Last year, I visited some first nations communities north of Mont-Laurier that were in a truly pitiful state. I would like to know whether this bill will be able to help in the negotiations or in the consolidation of those communities, so that they will actually be able to have a standard of living that might be described as uniform—as it is for people who live in North America. That is my first question.
My second question is still about Bill C-30, which provides for a five-year review by the Assembly of First Nations. I would like our colleague to talk to us about the specific claims tribunal process. What is going to happen every five years, and how could this be monitored? Is it realistic to think that the first nations in all of Canada are going to be consulted every five years, and how is that going to be done?