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.
5:10 p.m.
Senior Counsel, Department of Indian Affairs and Northern Development
If I understood your question, as I mentioned earlier, the grounds are set out in section 14. Of course the grounds are not restricted to reserve lands. Claims on other grounds can be brought.
5:10 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Wait, there is an important point. I want to understand. We have aboriginal people living off reserve, who are on land that has not been established as a reserve, and they have been there for decades. We are talking about 15 to 20 years. Could this Specific Claims Tribunal apply to them? Can they make a claim using that tribunal?
5:10 p.m.
Senior Counsel, Department of Indian Affairs and Northern Development
The question is not where individuals reside. You can see under the act that “claimants” are defined as bands under the Indian Act. These are claims by bands, not individuals, so it doesn't matter where an individual resides. Claims are brought by first nations. They are the only eligible claimants.
5:10 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
If a band is established, it is larger than aboriginal people on a reserve, can it go farther?
5:10 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
I'm not sure. We're probably not understanding your question completely.
I want to make something very, very clear. I'm concerned--
5:10 p.m.
Mark Lemay
I suggest you do that.
5:10 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
Yes. I'm concerned with members thinking that this tribunal or this process deals with claims to aboriginal rights and title and occupation of territories by aboriginal groups including bands. This is not about that. That is dealt with in the comprehensive claims process and in the B.C. treaty process.
The kinds of land matters that are dealt with here have to do with wrongful takings of reserve lands under the Indian Act. They have to do with the failure to provide or to have met the obligation to provide reserve lands, and that might have happened under treaty. And the end result of this is that if it's at the negotiation table, all the relevant parties are there and we address it there and come up with an agreement. If it's before the tribunal, the tribunal will establish whether wrongdoing has occurred and will give money only.
5:15 p.m.
Conservative
The Chair Conservative Barry Devolin
Thank you. I missed the one minute warning there. I was forty seconds late, so I gave Ms. Duquette a little bit of extra time.
Mr. Bruinooge.
5:15 p.m.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Mr. Chair, I'll ask that you remember that extra time that was provided. Add it to my next round, perhaps.
The questions that I'll ask maybe follow up just a little bit on some of the previous questions, and specifically in relation to previous specific claims that have been awarded in the last number of years, even right up until the most recent announcements that we as a government have made. How do you imagine that these dollar amounts for specific claims—certain claims in certain regions—and those levels in the criteria used are going to affect the judges in the types of benchmarks they set and the levels they set?
5:15 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
The judges will be doing a judge's job, which is determining whether or not there's a legal obligation. They're not involved with comparing one claim against the other. The first nation claim comes forward, they make a judgment based on the legal obligation that's owed, and then they quantify that legal obligation, the damages, if you like. So those other issues are not relevant. What has been settled in the past at a negotiation table, we settle, and the parties agree. At the tribunal, the judge makes a decision based on law.
5:15 p.m.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Right. I guess I'm just imagining the judges must have to look to some type of benchmark. They must use some rationale, so I imagine there must be at least some utilization of past awards to incorporate into their opinions. I think that's maybe self-evident in the answer, so I don't need an answer on that.
Maybe I'll ask just a few questions about Bill C-6, a bill that was passed by a previous government. Could you maybe highlight some of the improvements that Bill C-30 would have over the previous Bill C-6?
5:15 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
There are some key differences between the two. Of course, we've talked about the use of judges. The limit has gone up from $10 million to $150 million. There are legislated timeframes for assessing and getting back to first nations on claims and providing access to first nations when negotiations have not resolved the claim. So that is very, very different.
Another key feature is that when the tribunal is seized with making a decision, it deals with the whole claim at once. In other words, it deals with both what is the legal obligation and what is owed, so that when the parties leave, that claim is settled once and for all. There's not an additional step of saying “We think you have a valid claim; now go back to the negotiation table”. It is dealt with once and for all, and that speeds up the process quite considerably.
5:15 p.m.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
I'll follow up on some of the finality elements of Mr. Warkentin's question.
When the tribunal makes a final decision, my layman's perspective is that other judges in the traditional courts would be hesitant to reconsider a judgment that one of their colleagues has made, a colleague who is taking on these claims as a full-time occupation. My point is that it seems quite unlikely that after a final judgment by this tribunal, one of these cases would be reconsidered in the courts.
5:20 p.m.
Senior Counsel, Department of Indian Affairs and Northern Development
There are no appeal provisions, so the case can't be reconsidered on its merits. It will not be reconsidered in reference to the law or the judge's interpretation of it. The only provision for review is judicial review, which is an administrative remedy, available when a judge exceeds his jurisdiction. These are Superior Court judges to begin with, and I don't want to forecast what the odds might be of a successful judicial review. But those are the only grounds on which a matter might be looked at again.
5:20 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
I'm sorry if I keep going back to the claims that are in the system, but there are so many of them that it's a significant issue. I went to the specific claims branch and looked at its public information status report, which is 270 pages long. In all fairness, some are closed or settled cases, but I looked at a few of them. For example, one that was filed in 1998 is still with the Department of Justice for a preliminary legal opinion.
So I wonder what the relationship with the Department of Justice will look like in this new configuration and how it will speed up the process.
5:20 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
We are working with a special legal services section of the Department of Justice.
We were talking about resources earlier. In addition to the efficiencies and the resources, we work in partnership. Resources will also be there for the Department of Justice, which is very much involved in this process. For the process to work efficiently and be properly resourced, both the Department of Justice and INAC have to be adequately resourced. They will be.
5:20 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
So can I assume that the speed-of-service guidelines will enable the Department of Justice to respond in less than ten years' time?
5:20 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
Well....
5:20 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
You don't have to comment. I have a second question for you. When I look at the list, there's a significant number of files waiting in the Department of Justice for preliminary legal opinions. Some of them seem to be quite old. I'm sure there are many factors, but it does seem that the Department of Justice, forgive me, is a bit of a roadblock at times.
I'd like to just ask a question about mediation. I believe the minister said that part of the role of the Indian Specific Claims Commission has been mediation. Am I understanding that it has until December 31, 2008, to wrap up cases that are significantly far along? Bill C-30, as far as I understand, doesn't make any mention of either the ISCC or a dispute resolution process. So I wonder if you could tell us what's going to happen to the ISCC after December 31, and what provisions will be put in place for mediation.
5:20 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
The ISCC has two functions: first, it hears inquiries and makes non-binding recommendations; second, it provides mediation at the request of the parties. As announced eight months ago, the Indian Specific Claims Commission will finish those inquiries that are far enough along to be wrapped up by December of this year. Meanwhile, it will continue to provide mediation services to the negotiation tables.
5:20 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
It will go till December. After that, mediation services will come under a new body. It has to be a new body, because the Indian Specific Claims Commission is technically a commission of inquiry. So after that date, mediation services will be provided to the negotiating table. It will continue.
5:20 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
That commitment will be in place, and mediation services will be provided after December 31 at the same level that is provided under the ISCC?
5:20 p.m.
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
As per “Justice at Last”, this is part of a comprehensive proposal. The idea is to give enhanced access to mediation, recognizing the value of that, and recognizing also that the idea is to negotiate as many of these claims as we can. Let's get those mediation services in. That's a key government proposal and a key pillar in the “Justice at Last” plan.