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

[Tina Keeper, Liberal, Churchill, MB]

Okay. I would like to also ask a question. You had said that the vast majority of the claims will be negotiated and those that you are unable to negotiate will move to the tribunal process. Many first nations have claims that are focused on land, and they are not interested in a cash-only claim. What is the process that the government intends to put forward for the claims that are focused on land?

[Sylvia Duquette]

This is a very good question.

Usually when the claim involves land, we need to have the province involved, and we do that at the negotiation table. From the federal government's perspective, though, even at the negotiation table, the component from the federal government for its responsibility is usually cash, and that will be the same thing at the tribunal. As the vast majority of claims are being negotiated, we look for participation from the provinces wherever possible, and we certainly invite them to all of the specific claims tables where they can be of assistance or where they might be partially responsible where land issues are engaged.

[Tina Keeper, Liberal, Churchill, MB]

Is there a particular type of relationship in that negotiation process? Is it is sort of a trilateral, or is there a bilateral, or a double-tracked bilateral process? Is that decided by the first nation and the crown?

[Sylvia Duquette]

The best example of this is treaty land entitlement. Sometimes land is owed under historic treaties, and it has not been provided, or not enough land has been provided. In most of the provinces we have an actual agreement with the province now, a mandate to go forward. We have tripartite tables, and at those tripartite tables there is a first nation, there is a province--say Saskatchewan--and there is the federal government. The province works with us so that the land component can be dealt with at the same time as the cash component.

That's very positive, and that will continue.

[The Chair, Conservative, Barry Devolin]

Thank you.

Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

Thank you very much for staying and being part of our deliberations this afternoon.

I'm wondering if we could just talk briefly about the determination of validity of claims and how that is done, and what the process is in this new piece of proposed legislation. How will the different parties come to a determination of validity of the claim?

[Sylvia Duquette]

Go ahead. It's the tribunal.

[Robert Winogron]

Is the question how will the tribunal decide validity, or how will the minister decide whether or not to negotiate?

[Chris Warkentin, Conservative, Peace River, AB]

I think probably the tribunal first.

[Robert Winogron]

If you look at clause 26 of the bill, it sets out very broadly that the tribunal will conduct its hearings in any manner it considers fit. Then subclause 26(2) of that is on taking certain things into regard, such as achieving an expeditious resolution. The tribunals, and these are Superior Court judges, will write their own rules of process, and they'll conduct their hearings as they see fit. If it's in the traditional court model, they will hear evidence, they'll hear witnesses, they'll look at documents, and they'll come to a determination as to whether there's an outstanding lawful obligation.

[Chris Warkentin, Conservative, Peace River, AB]

What would the timeframe of a determination of validity usually be? I suppose it would depend on the circumstances. Would that be part of the three-year process from the time...or that's in addition to?

[Sylvia Duquette]

Tribunal hearings usually are much shorter than that. An average claim we would anticipate might take up to three weeks; some will only take two days. These are hearings; evidence is put forward, and the judges will then make a decision.

The three-year timeframes relate to assessing the claim by the minister for negotiation--so a decision from Canada that we want to negotiate this claim--and the other three-year timeframe is for the negotiation process. You can go beyond that, but it's a three-year timeframe, after which if you haven't got a settlement agreement, the first nation has the option to say this is enough; we want to take it before the tribunal and get a decision.

[Chris Warkentin, Conservative, Peace River, AB]

So in terms of the determination of validity, if they're deemed to be not valid, is that a binding determination, or is there a process after that by which other mechanisms might be utilized?

[Sylvia Duquette]

Go ahead, and you fill in.... It's a final decision by the tribunal.

[Robert Winogron]

It's a final decision, and the respondent parties are released from obligations. Interest in the land is released if land is an issue. So the decision is final, subject only to judicial review, which is a process wherein if the jurisdiction of the tribunal is in question, then that jurisdiction can be questioned; otherwise it's a final decision.

[Chris Warkentin, Conservative, Peace River, AB]

Obviously, specific claims come in so many different forms, and I'd like to just question a little bit in terms of the expropriation of land, specifically for transportation corridors and specifically for rail. I understand there are some specific claims that address the issue of rail, either currently being used, or ones that have been abandoned but haven't been given back to the aboriginal community. I'm wondering, in this type of a situation where there may be a third party company, like CN or CP, involved, how that will play out or how they'll be involved in the process in determining either damages or restitution.

[Robert Winogron]

The answer is that they will not be involved. The tribunal will only assess the liability of respondents, so third parties will not be respondents in this process. So if there is a fact situation that involves a third party, the tribunal will look at those facts and determine what the liability of the federal government is, in that set of facts, or whoever else is responding, whatever provinces, and award compensation against a respondent party for its share only.

[Chris Warkentin, Conservative, Peace River, AB]

I understand we're getting into the hypothetical, and maybe that's a dangerous place to be. I'm just wondering how you would foresee a dispute over rail--currently used rail--being resolved, if in fact that's brought forward as a specific claim.

[Robert Winogron]

There are a number of questions there. It is an interpretation. If you look at clause 14, it sets out in great detail grounds on which a claim can be brought. If the facts of any particular case fall within one of these grounds, then the claimant has an opportunity to bring a claim, first to the minister, and then in three years to the tribunal. So we can speculate on different fact scenarios, and maybe it's not good to guess how it would play out, but the grounds are clearly set out in that section.

[The Chair, Conservative, Barry Devolin]

Thank you.

Monsieur Lemay.

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

Thank you. I am going to try to be concise.

Ms. Duquette, you said something earlier that bothered me and stuck in my mind. That being said, I will take what Mr. Winogron in its most positive sense. Paragraph 14(1)(d) says:

14. (1)(d) an illegal lease or disposition by the Crown of reserve lands;

Imagine that we are on the shore of the ocean and there is a land claim all along the coast, because there was an expropriation and the shoreline has been taken from a reserve and surrendered to the Department of Fisheries and Oceans so it can build a port. Should the Department of Fisheries and Oceans not be named as a party to the proceeding? Could other government entities—I referred to the railways earlier—be named as parties to the proceedings?

[Sylvia Duquette]

I'm going to ask for legal counsel to add to this.

When we talk about the federal government, we're talking about fiduciary obligations. The reason the federal government is involved, in particular the Department of Indian Affairs, is because when lands are taken under the Indian Act, it is the minister and the Department of Indian Affairs who are involved in saying yes or no to that, and dealing with surrenders and the like. Usually the claims that come to us are about our failure to fulfill our fiduciary obligations in consenting to lands being taken. That's where the federal liability comes in. That federal liability is often related to the Indian Act and duties that are marked out in the Indian Act.

I don't know if that helps you.

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

Yes, that helps me. So the issue is confined to reserve lands under the Indian Act. For Indians off reserve who have occupied land for 50 years, for example, but it had not been established as a reserve, it would not apply?

[Sylvia Duquette]

No.

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

I understood correctly when I said that? So it would not apply to them. That's correct?