Evidence of meeting #12 for Indigenous and Northern Affairs in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tribunal.
A recording is available from Parliament.
Robert Winogron Senior Counsel, Department of Indian Affairs and Northern Development
There are provisions in the bill. Subclauses 14(2), 14(3), and 14(4) are a little wordy, but they do provide for a claimant to submit a claim based on facts that occurred pre-Confederation.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Thank you, Mr. Chair.
Thank you, Mr. Minister, for coming before the committee on this important bill.
I have three questions. I'm going to ask them all at once and then turn it over to you to answer.
First, what kinds of commitments and assurances are there to ensure that the political accord is followed through in a timely way? We've seen with other political accords that when there was a change of government they often collapsed.
The second question is a philosophical one for those of us who in previous lives dealt with mediation, negotiations, and what not. Many of us have come from an interest-based position on negotiation and mediation. I wonder if philosophically there is any will to work toward a more collaborative approach to settling these claims instead of an adversarial one. Even with this work it's still an adversarial approach.
My third question is based on some of the very good work that was done by the parliamentary staff on transition. We know from the records that there are 612 claims under review and 138 in negotiation. Previous departmental witnesses who came before the committee indicated that the backlog was significantly more than that because there are claims that have not reached the stage of being reviewed.
Parliamentary research said that when we're looking at claims that are already in the hopper, the practical effect of clause 42 is to return the clause 16 clock to zero for all claimants with active claims, irrespective of when their claims were submitted or decisions to negotiate the claims were made under the pre-SCTA system.
In essence, to have the clock turned back to zero for the claims that are already in the system and could have been in the system for a significant number of years once that review is done seems to disadvantage them. Are any extra resources or mechanisms put into effect to not disadvantage people who have already been in the system for years and years?
Thank you.
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
Thank you. Those are all good questions.
On the political accord, it was something that was agreed to by the Assembly of First Nations, and I finally agreed to it as well. It was part of the negotiations in Jim Prentice's day, but I signed off on it as we came to the end of the task force work.
The political accord sets out the expectations of the Assembly of First Nations, the national chief, and me on the frequency of meetings and the ministerial commitment to follow through on decisions. Negotiations were started under Jim Prentice, but this is something I readily agreed to. It gives a level of comfort, I hope, to the Assembly of First Nations, in that it operates at the ministerial level. It's not just a departmental office or a wing of something. We want to make sure that the minister himself or herself is engaged in resolving issues surrounding claims.
It's a political commitment, a political accord. Because it's a political commitment, I would think that any minister who holds this job will want to follow through on it. To break this would be very unwise. Much goodwill has been established, and the political accord is more evidence of it. So it's a political commitment. It's not a piece of legislation, but it is an important document that goes right to the highest level of both first nations and the Government of Canada.
The other question, the philosophical question, is what can be done to take us away from the confrontational role that this presupposes? I think this will do three things. One is that we are committing more resources. The current commission, for example, is going to be transformed into a mediation role. It's going to change from simply accepting the claims as they come in and tallying them up in the pile. They've done a lot of good work, but it's going to change. Because of the tribunal, the role will change into a mediative one. That's an important role, and I hope they'll be able to bring parties together and move it along before it gets confrontational.
Overall, the biggest effect is the tribunal itself. The tribunal sets time limits, finally. So first nations will no longer have to take up claims they inherited, which is a frustrating process. It can get pretty nasty, after it's been going on for a generation. If it gets to a stage where you can't see your way to negotiation, or if three years have gone by, it can be sent at first nation discretion to the tribunal, to judges. It's no longer confrontational; the judges will actually make a ruling.
I think the fact that it's there and happening will take a lot of the sting out of it. Instead of a lifetime drag-out fight—and I think we've seen plenty of those in the past—it will encourage everyone to work together. We will all know we have a three-year limit, so we won't waste time. I think that in itself is going to be a great mediating element, a leavening, in the whole system.
The last thing I jotted down here is claims in the system. There is a need to have more resources, and this was one of the things that was identified, both in the Senate report and by the task force. More resources are necessary to make sure that we don't just transfer one backlog to another. Otherwise, I don't know how we can do it. You mentioned the three-year claim. It's at the discretion of the first nations. The first nations will have a choice. They'll be able to refer it to the tribunal if they think it's gone on long enough. It's at their discretion; it's not something the government will do.
I believe the minister can also agree to do it earlier. If first nations come to me and say it's already dragged on so long that they want to move it right to the tribunal, the minister has the ability to do that inside the three-year limit.
I would think some of those claims that have been in the system a long time would be prime candidates to get right in there so we wouldn't have to wait three years for our first claim.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Thank you, Mr. Chair.
Thank you, Minister Strahl, for coming to the committee today. I know that ever since you received this important appointment, you've really embraced this bill and of course the work that needed to be done in order to bring it to fruition.
I have seen the amount of effort that has been put in, not only by your staff and the department, but also by the AFN. There needs to be a lot of credit extended to them for the important work they did in assisting on the drafting of this bill. I think it really speaks to the fact that in a democracy there are times when parties can come together and really do excellent work in areas on which they can find agreement, and I think obviously this is a really strong example of that.
I know that you've really taken an initiative on this. Perhaps you could talk a bit about how you see this as a very substantive, systemic reform, especially in relation to what we've seen as a massive growth in outstanding claims over the last number of years, and really how this has been a priority for you and how you think this will begin to find a way to diminish that massive number of outstanding claims that we have.
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
Thank you. I would just echo that. I think I've spoken about it enough, but it always bears repeating, that collaborative work is most ideal in any subject, and perhaps even more so on the first nations side, where you have, quite often, a vast variety of interests, some of them dating back to Confederation or pre-Confederation.
I do think this is going to help us solve more specific claims quicker. I already mentioned that I think it's going to create a new dynamic. It's going to create a new attitude among negotiators. It's going to relieve a lot of tension from people who understandably say it's been going on too long, and they want to see a solution, and they'll be able to see it in their lifetime. In fact, most of them will be able to see it, perhaps, during their electoral cycle. They say, “I started this land claim, and before I ran for election as chief, it went on to the next stage”. They can really see progress. I think it's a huge change in the way they'll be able to show progress to their own people, and I'm going to be proud to be part of that.
There's also a lot of work we can do to speed up claims generally. We've been talking about grouping claims, for example. In B.C., for example, there'd be claims on graveyard sites. A lot of the research that we would do would be common. The graveyards are isolated. They've been left out. There's concern that there are specific claims on it. But instead of saying “We're going to do the research on grave sites for you, and when that's all over we'll start research on grave sites for you”, and so on, it just makes a lot of sense to say that there are twenty specific claims on grave sites, and a lot of the research is common--for example, what constitutes a grave site, what are the boundaries, how do we designate it. I think we can do a lot of work to speed things up. There will always be specific claims, individual settlements, so to speak, but a lot of the research can be sped up. We can do a lot of things in common, because you can imagine in 800-plus claims there's a lot of repetitive argument and repetitive research even. So I think we can do some good work, working together with first nations to settle more of them, quicker.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Mr. Minister, I think another element of this that hasn't been discussed maybe as often as it should is that there's considerable interest from the resource sector as to the certainty this will provide, not only for the resource sector, but for entrepreneurial first nations communities. How do you think this will accentuate first nations communities and the resource sector to perhaps increase the economies of the north in the short and long terms?
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
It is important, as Ms. Duquette has already pointed out, to note that specific claims don't deal with land per se. This has to do strictly with monetary compensation; land is not part of it. Now, it may eventually be part of it, if a first nation decides to buy some land and asks for it to be added to a reserve. That can be done, but it's done on a willing buyer and willing seller basis. When that happens, on our part we're going to accelerate and make additions to reserves a priority. To use the example of the graveyard, we'd say let's not mess around; they want it part of the reserve, so let's add it and get it done quickly.
But there is, of course, an element to specific claims, some of which are quite large, where you'll be saying—once you hand it off to the tribunal—I want a final decision on this. That's part of what you agreed to: we want a final decision. So both parties, in a sense, are saying we've done our negotiations, we've done our research, we handed it off to the tribunal and we want a final decision. Then that final decision is binding on the parties, and then we will move on.
In that sense, I think it gives everybody a degree of comfort. It doesn't involve land, per se, but it does involve the final disposition of the issue or specific claim itself. In that sense, I think it does give some assurances in a timely way for everybody who might have an interest. Even if it's a third-party interest looking on, they'll be able to say this process isn't a lifetime thing, but we can track it and see how it's going to happen, and it's going to be dealt with with finality—and quickly.
I think that's a great thing for first nations, and I think it's a great thing for all Canadians. That's why I say it balances all those rights, and I think it gives a really nice option for first nations who want to use it—though they don't have to use it—of some assurance we're going to move on it quickly.
Conservative
The Chair Conservative Barry Devolin
Thank you.
We've finished the first round. Now we're into the lightning round.
Five minutes of lightning, Mr. Russell.
Liberal
Todd Russell Liberal Labrador, NL
Thank you, Mr. Chair.
Good afternoon, Minister Strahl. It's good to see you here.
Again, this is one example of a collaborative approach taken by your government—one example, I would emphasize. I don't know if there are others. I would only suggest that if we had done this with the repeal of section 67 of the Canadian Human Right Act, we wouldn't have had such a protracted debate on that particular piece of legislation. So I would encourage more of this approach.
I just want to ask a question. You say that land is not involved, but when a first nation comes forward with a grievance of some sort, isn't the land one of the contentious issues that is part of the claim being asserted? Isn't that one of the most contentious issues, in the sense that, even in this legislation, there is the extinguishment or release of any rights of the first nation to any lands? You can't grant larger lands or establish a boundary that might be in dispute, or talk about encroachment of interests around that particular piece of land, but you can only grant some compensation for that.
Is that going to be a stumbling block, do you think? Are we trying to get out of this situation, just because we're increasing the dollar amount of compensation? Is that the rationale behind this?
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
Maybe land isn't involved, in the sense of it being part of the dispute, but this bill and the tribunal can only award cash. The federal government usually doesn't own any land any way. Usually land is not part of it. Certainly with this tribunal, it's strictly cash. Again, they may decide to buy land with the cash, but we don't award land; that's not part of what this specific claims process will do.
Some of the other things you mentioned are typically part of more comprehensive land claims agreements or have to do with constitutional or treaty rights. This bill's not meant to deal with those either. For example, if the issue is harvesting rights or resource rights or rights to more land, or even additions to reserve, it is not part of this. For example, we added 159,000 acres to reserve last year in Manitoba, and we're hoping to add another 150,000 this year, and so on. That's a land-based issue, an addition to reserve, and it is not covered by this legislation. This isn't meant to solve every negotiation issue we have, but is strictly for the specific claims process.
Liberal
Todd Russell Liberal Labrador, NL
No, I was just trying to make the point that land is a contentious issue--
Liberal
Todd Russell Liberal Labrador, NL
--once the claim has been asserted.
With regard to timelines, I appreciate the fact that we have six months or three years for various parts of this particular process. Why wasn't the decision taken--or I can't read it in here, at least--to assert a timeframe for the tribunal itself to make a decision once it reaches that particular level? There's nothing in this particular bill that establishes a timeframe for the tribunal once it's heard all evidence or taken all positions into account to make their decision.
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
No, but the tribunal will be made up of judges. The judges want to hear all the evidence. I don't think it would be right to tell a panel of judges that we'll give them three weeks and then the time is up. Every case is quite different and quite complex. Some cases may be dealt with very quickly, but for some cases the judges may say they want to hear more evidence because it's so complex. They might need more time.
Obviously judges take the necessary time to do a good job, and I'm not going to be one to tell them--I don't think it would be right--to hustle their buns.
Liberal
Todd Russell Liberal Labrador, NL
I appreciate that, but there could be a time span.
The $250 million, is this new money per year?
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
Robert was just pointing out to me that there are provisions saying that it should be done fast, that it should be done as quickly as possible. But I think the truth is that it has to be done properly. I don't think anybody wants a slapdash approach to this. When you take it to the judges, you want it done with solemnity. These are big, important issues for people who have been waiting a lifetime to get something solved.
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
It's a new commitment of more than $250 million a year over ten years, with a chance to review it all in five years. It doesn't include any of those big specific claims. The ones bigger than $150 million would be a separate cabinet mandate. We would have to deal with that separately. This money is set aside in order to commit resources, which is one of the things that were lacking in the previous attempts to solve this.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
Thank you, Mr. Chair.
Thank you, Mr. Minister, for being here today.
This topic is certainly of interest to all Canadians. In my riding especially, whenever I mention the fact that there are all these outstanding specific claims, they find it hard to believe.
I think I heard you say that there are 800 or more of these claims. Can you give me a bit of a timeline as to how we could have possibly gotten into a backlog of that magnitude? Has this grown very rapidly in the last year or two, or is this something that's been accumulating for the long term?
I'd be interested to know if we have a record on that.
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
I'm told that it's been accumulating since 1993. The difficulty has been that there's been no....
In a sense, the government has been, up until now, kind of judge and jury. We've been responsible for all parts of it--accept the claim, reject the claim, award compensation or not, and on and on. Previously all power was held under the government. And the government is saying that rather than do it that way...and it wasn't successful. In fact, it was arguably a disaster.
So by saying that we're going to unleash it, we're taking our hands off it, we're going to give it, we'll just commit a pile of cash to it in order to settle it, I think that's a big reassurance for people who are saying it's not right to have the government pass judgment on the validity of my claim, on the validity of my research, on whether or not they're going to accept it, and on how much they're going to pay, holding all the cards.
This way it's somewhat at arm's length from the government. It's being given to the judges to make the decision. It's a far different system, and I think why we have AFN acceptance.
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
I think it would probably be fair to extrapolate from this that if we didn't implement a system like the one you're proposing, the 800 would quickly grow to many more.
On the issue of financial compensation, you mentioned the $250 million per year. If, for example, in year one there were only claims settled that would have expended $50 million, would the $200 million that was left from that year be accumulated to the following year? Or do we start over with a new allotment of cash in the subsequent year?
Conservative
Chuck Strahl Conservative Chilliwack—Fraser Canyon, BC
My understanding is that the money does not lapse. It's a commitment that goes forward. It's not in the bill. The settlement fund is created to make sure that it's done as are other resources that are committed to this process. That's not in the bill, but that commitment has been made. That money will roll forward.