Indigenous and Northern Affairs Committee on Feb. 6th, 2008

[Sylvia Duquette]

Yes. The key part of the backlog, all at once, is up to 500 claims, just in that initial phase, as you've said. So on turning back the clock and starting the clock, you're quite correct in that. It is three years going forward. So it does add to the time. They've been in there before, and they have another three years.

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

Will they be given any priority over new claims coming in?

[Sylvia Duquette]

There is a special process there that allows them to.... They will want to refresh their claims, as well. They will not lose time by doing that, and we will be accommodating that, because of course once a claim sticks around for a long time, it's not necessarily ready to be assessed. At that point in time, the first nation needs the opportunity to update the claim and put it in good order.

One of the things I would say in terms of improving the timelines, though, despite the fact that you're quite right that the clock starts when the legislation is.... Right now, without making changes, the projections would be many years beyond three. All those first nations with claims in that backlog assessment phase will have a response on those claims within three years. So that's a very important part of that process, but we do need at least those three years to respond to this glut of claims that is backlogged there.

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

Are you going to have the resources to do that? I think that's the other issue. I'm not sure that there's confidence that there's going to be sufficient resources to deal with these 500-plus claims that are currently in the hopper.

The second piece of that is whether any part of that $250 million that's being allocated is going to be put into the administrative aspect of this.

[Sylvia Duquette]

No. I should separate out those two things, but as the minister said earlier, in fact, yes, there will be additional resources, because we are very committed to getting through the backlog within that three-year timeframe. We now have a legislated timeframe, and we need to give a response.

The $250 million has nothing to do with government resources. The $250 million is exclusively and solely available for the payment to first nations on their claims.

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

So none of it is for administrative purposes.

[Sylvia Duquette]

No. That is something completely separate, and the resources will track that process so that we can meet that timeline.

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

Have you done an analysis in the department of the kinds of resources that will be required to meet your commitments within three years? Say, for example, that a significant part of this 500 or 600 claims that are in the hopper.... Have you done the analysis on the kinds of resources that will be required in the department to meet your commitment, to meet the three-year timeframe?

[Sylvia Duquette]

Of course we are looking at all that, and at the efficiencies, as well, and we've identified all those efficiencies so we can go forward in that way.

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

Is that information available for the committee?

[Sylvia Duquette]

We don't have a report per se that we could introduce. We can certainly try to get back to you with something. But essentially, we do know what resources need to be allocated, and we're confident, and there's a commitment there that those will be there for us to proceed.

[The Chair, Conservative, Barry Devolin]

Thank you.

We'll go to Mr. Bruinooge

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair. Perhaps we'll just have a few questions in relation to some of the processes that will be undertaken by the judges.

One of my questions is whether there have been any parameters set for the judges in relation to the timelines. Is there a process they'll be able to follow so they can achieve the timelines? I'm just thinking of other scenarios. This is kind of tangential, but in Manitoba we have a public process for insurance. There are limitations on things that you can get for a sprained neck or a broken leg, and this really clarifies the process. There are timelines associated, there are dollars associated; it's very efficient. It actually is an entity that serves the province somewhat well.

My point in comparing it to this process is to ask what types of levels would be employed in order to achieve the chronology that you spoke of. For instance, if one judge felt the $250 million was suitable for one claim, I can imagine that the other cases that year wouldn't be able to be completed. So the $250 million, to me, speaks to an amount of money that will have to be parsed over a number of claims.

To wrap up my question, is there any initial process that the judges will be employing in order to parse out that $250 million?

[Sylvia Duquette]

If I can go back one step, one of the things that's important here is that when we're talking about the whole backlog--these 800 claims--as the minister said, the vast majority of them will be negotiated. So what we're talking about when we talk about the tribunal is that minority of cases where either the parties haven't agreed that there's a legal obligation there--so where the government has declined to negotiate the claim--or where the negotiations have broken down. So a good majority of those claims will be nowhere near the tribunal at any time.

Regarding that minority of claims before the tribunal, the minister mentioned that these are judges. They will control their process. And as we pointed out in the bill, part of what the tribunal is urged to do is to consider timeliness as part of what they must consider in going forward with a claim. That being said, it still has to be done diligently. They will be making their own rules, and in making their own rules they are directed to do so in such a manner that the claim can go along quickly.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

There's been considerable bipartisan support for this bill. I believe we'll see it pass in a timely manner, perhaps even in the next six to eight weeks. After it achieves royal assent through the Senate, which I don't expect would be held up either.... Perhaps it would achieve that in early May. This is blue-skying it, because my experience with getting bills through this committee hasn't been a good one. But I'm hopeful that on this subject we will have a good experience and a lot of diligent work to get it done.

So let's say, perhaps, we receive royal assent sometime in mid-May. When could you imagine this tribunal being up and running?

[Sylvia Duquette]

Of course it has to be up and running 120 days later, when the bill comes into force. There's an automatic coming into force. Here I'll look to my colleague at the Department of Justice, but under the Interpretation Act, even before it comes into force we can start doing all of the administrative preparation in getting the tribunal set up to be prepared for that day four months later.

So there's royal assent, then 120 days later it automatically comes into force. And in that intervening period we expect to be ready to launch so that on day one the tribunal is up and running.

[The Chair, Conservative, Barry Devolin]

Thank you.

Ms. Keeper, five minutes.

[Tina Keeper, Liberal, Churchill, MB]

Thank you, Mr. Chair.

I'd like to thank you for staying so that we have this time.

I'd like to go back to clauses 22 and 23, around the issue of the provinces, and the fact that the minister said that they don't have to acknowledge liability. If they'd like to be a party, then they can notify the tribunal in writing. I'm a little confused about the relationship, then, of the crown and the first nations in this process, because what he stated was that this is the only way the province would be involved.

Is that right, that it's only if the province decides to be involved?

[Sylvia Duquette]

Yes. This is, of course, a federal tribunal. Most of the matters being dealt with have a large federal or even an exclusively federal responsibility component to them. That is not to say that provinces don't have some responsibilities on some claims as well.

[Tina Keeper, Liberal, Churchill, MB]

Right, because clause 22 says that the tribunal may have a decision that a “specific claim might, in its opinion, significantly affect the interests of a province, First Nation or person”, and then it would notify them in that instance. In that instance, what is the process at that point?

[Robert Winogron]

If you look at clause 23, it provides the tribunal with jurisdiction to grant party status to a province, and that happens under subsection 23(2) where the federal government makes a claim, essentially, against a province. The federal government is faced with a claim by a claimant first nation, and the federal government's position is that actually this province is partly responsible for this; that's the government's position and it invites the province to attorn to this tribunal's jurisdiction and be part of this claims process.

[Tina Keeper, Liberal, Churchill, MB]

Is it only the crown, or is it only the federal government that would have the ability to make that kind of claim? Would the first nation as well? Would that be part of their claim and then the tribunal would make that decision?

[Robert Winogron]

That's right. The first nation can make an allegation that a province is at fault. It doesn't happen. It usually happens that it's the federal government that makes an allegation against a province, but it is possible. Then it's the province's decision as to whether or not to attorn to the jurisdiction of the tribunal.

[Tina Keeper, Liberal, Churchill, MB]

Then it is really up to the tribunal to take that action?

[Robert Winogron]

Yes, the tribunal grants party status.