Indigenous and Northern Affairs Committee on Feb. 25th, 2008

[The Vice-Chair, NDP, Jean Crowder]

I call the meeting to order.

Our regular chair is away and Nancy wasn't sure if she was going to make it back in time for the meeting, so I'm chairing the meeting today.

I want to welcome our guests, Jody Woods and Debbie Abbott.

For your own information around the format, it's a fairly formal structure here. We'll ask you to take about 10 minutes to present, and then the committee members will take turns in asking you questions. Those turns will include your responses. For example, in the first round each member has seven minutes to ask a question and get your response, and we will ask you to be complete within that seven minutes.

I'm going to turn it over to you for your opening presentation, and then we'll turn it over to the members for questions.

[Debbie Abbott, Director, Nlaka'pamux Nation Tribal Council, Union of British Columbia Indian Chiefs]

Good afternoon.

I am Debbie Abbott. I'm a member of the social development committee for the Union of B.C. Indian Chiefs.

I would like to thank you for inviting me to make this presentation to you today on behalf of the Union of B.C. Indian Chiefs.

With me I have Jody Woods, who is a member of the research staff of the Union of B.C. Indian Chiefs.

We did bring a bit of a presentation. Because of the length of time, I will just make a few comments from our paper. We have copies for the committee as well. I'll get right into our presentation.

First of all, I'd like to quickly go over the history of specific claims research and policy reform advocacy. The Union of B.C. Indian Chiefs is a not-for-profit organization representing over 80 first nation communities in British Columbia. Our goal is to improve intertribal relationships through common strategies to protect our aboriginal title and rights.

We also strive to support indigenous peoples at regional, national, and international forums, and continue to defend our aboriginal title through the revival of our way of life politically, legally, socially, economically, and spiritually.

The Union of B.C. Indian Chiefs houses the oldest, largest, and most experienced specific claims research program in the province of British Columbia. It provides research services to any first nation that provides us with a mandate.

In addition to our ongoing specific claims research projects, we focus on providing B.C. first nations with up-to-date information on specific claims and policy reform, and since our inception we have worked tirelessly for the fair, just, and timely resolution of B.C.'s specific claims.

For more than 20 years now, first nations have sought an independent and impartial process for the resolution of their historical claims. The Union of B.C. Indian Chiefs has been at the forefront of this effort.

The three fundamental failings of the current specific claims process are that Canada sits as the judge and jury over its own conduct, that Canada takes as long as it likes to consider and respond to first nations' claims, and that Canada consistently underfunds B.C. for the research, submission, and negotiation of its specific claims.

Bill C-30 is Canada's latest attempt to address some of these flaws, first by establishing an independent and impartial tribunal having the power to make decisions binding on Canada, both as to whether a claim is valid and what compensation Canada must pay, and second, by.... There has been a misprint here.

[Jody Woods, Research Director, Union of B.C. Indian Chiefs]

Bonnie, perhaps we could see one of the copies we gave you. I'm sorry to do this; something has happened in our notes.

Thank you so much.

[Debbie Abbott]

And second, it does so by establishing timeframes for Canada's response to first nations' claims. These are marked improvements to the existing process.

That said, there are particular concerns that Bill C-30 does not adequately address. Some of these have national implications, while others are unique to British Columbia's claims situation. Without significant amendments, Bill C-30 will do little to resolve the backlog of specific claims, especially those arising from B.C.

I will return to this crucial issue in a moment, but I will first outline for you the unique history of reserve establishment that has given rise to so many specific claims in British Columbia, as well as the unique status of British Columbia first nations' specific claims in the large, much growing backlog of claims awaiting action by the federal government.

As for B.C.'s unique claims situation, in the colonial period from 1848 to 1865, Indian reserves in British Columbia were established by Governor James Douglas, pursuant to his commission from the Hudson's Bay Company and the British Imperial Crown. On southern Vancouver Island, small reserves were established by Governor Douglas as a result of the Fort Victoria treaties. In the Fraser Valley and in parts of the southern interior, Governor Douglas ordered the establishment of large reserves. When Douglas sent his surveyors out, he told them to ask the Indians to point out the lands they wanted to reserve. He wanted them to include cemeteries, hunting grounds, villages, gardens, and favourite resorts.

From 1866 to 1870, his successors proceeded unilaterally to cut back significantly, or cut off, Douglas reserves. In 1871, British Columbia entered Confederation. In the post-Confederation period, from 1871 to 1905, several federal-provincial Indian reserve commissions were appointed to complete the allocation of Indian reserves in British Columbia. These commissions were established and guided by orders in council and formal letters of appointment from federal and provincial authorities. Commission decisions to establish reserves were unilateral executive actions, as no specific legislation, other than the orders in council or treaties, was involved.

Entirely separate from these 19th century reserve commissions, Treaty 8 was signed in 1899. Pursuant to its terms, treaty reserves were created in northeastern British Columbia and in the old Peace River Block.

From 1913 to 1916, another joint federal-provincial royal commission, known as the McKenna-McBride commission, was established to adjust Indian reserves in British Columbia. Many reserves were reduced in size or cut off completely. A small number had acreage added, while most simply had their earlier allotments confirmed by this royal commission. Reciprocal orders in council by both governments approved the McKenna-McBride commission's decisions. As with earlier reserve commissions, the decisions of the McKenna-McBride commission were unilateral and have resulted in many specific claims in British Columbia.

In short, after Confederation, reserve establishment in B.C., with the exception of Treaty 8 in the northeast, did not take place pursuant to treaties, but rather through a series of joint federal-provincial reserve commissions that were established without the input of first nations, and whose reserve decisions were made without the consent of first nations. Before 1938, these allotted reserve lands, although promised to the first nations, were adjusted, reduced, and in some cases eliminated without the consent of first nations. These unilateral government actions have given rise to the many historical grievances to be resolved as specific claims.

It is against this historical context that the present circumstances of the B.C. first nations' specific claims need to be addressed. In British Columbia, there are over 200 individual Indian bands or first nations living on over 1,680 small Indian reserves.

[The Vice-Chair, NDP, Jean Crowder]

I would ask you to wrap up in one minute.

[Debbie Abbott]

Essentially, these reserves comprise the second smallest reserve land base in Canada, yet we have the third largest on-reserve population in the country.

Wrapping up very quickly, there are two things. We look at the creation of the specific claims tribunal and we find that the tribunal is still, again, not addressing the conflict of interest on the part of the federal government. The conflict of interest of Canada sitting in judgment against itself is not fully removed. In our briefing note, we also talk about the accessibility and the issues of that, of the tribunal, the standards for claim submission. Funding is a very critical issue for communities wanting to do the research for their claims. We talk about reserve creation claims, remedies.

Finally, my conclusion is that the goals of the specific claims policy were stated to be justice, equity, and prosperity for first nations--outstanding business. The existing specific claims process has not realized these goals.

[The Vice-Chair, NDP, Jean Crowder]

Thanks, Ms. Abbott.

Before we get into the round of questioning, I'm going to ask the committee's indulgence to insert myself in the round where the NDP would normally be. Does anybody have any strong objections to that?

We'll start out with the Liberals.

Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Liberal to the core, Madam Chair.

Thank you, and good afternoon to our witnesses, Ms. Abbott and Ms. Woods. I'm certainly looking forward to your full brief and going through it in a bit more detail.

This is a significant piece of legislation, and one that will impact quite significantly on first nations people and the resolution of outstanding land claims. You touched on a couple of issues that I want you to comment on a little further.

The tribunal cannot award anything outside of cash, in terms of a cash settlement. It doesn't deal with land as such. Once you take a cash settlement, you basically have to quit your claim to certain lands that may be in dispute, for instance, and then you may have to go to the province in order to establish a claim or to take the province or some other interest to court. I find it a bit contradictory if you've already quit your claim and you've taken the compensation. I find that land in itself is a very fundamental issue to aboriginal peoples throughout the country, whether they're in comprehensive claims or in specific claim situations.

So this is my first question. What is your sense of that, that even if you go through the negotiated process or if you go through the tribunal specifically, you cannot be compensated in terms of lands, you can only be compensated in terms of cash?

The government purports that this bill is going to speed up resolution of claims, but it can still take six years from the time the government says, okay, you submit your information, we'll take three years to assess it and see if we're going to accept or validate the claim and another three years for negotiations, unless both parties agree and say, okay, we're quitting this, we're going to go to the tribunal. So that's my second question.

My third question is this. I'm of the understanding that first nations had a direct say in the appointment of judges or adjudicators or people at the tribunal level under Bill C-6. Under this particular piece of legislation, it only says that we may talk to the grand chief of the Assembly of First Nations. There's no dual role for each to recommend. As I understand it, under Bill C-6, there would be three people sitting in judgment on a specific claim, whereas under this particular legislation, there's only one judge. How do you feel about those changes, those specific instances of Bill C-30?

[Debbie Abbott]

On your first question of taking compensation for a cash settlement, as a quick example, the communities I work with live in the transport corridor, Ashcroft and Spuzzum. They are very tiny reserves and they're already divided up by two railways, a highway, and a hydro line. If there is no opportunity for a land settlement, it makes it very difficult to try to purchase additional lands within that very confined transport corridor.

One community I work with is in the process of purchasing additional land, as recommended by the regional office of Indian Affairs. In that recommendation they not only support the purchase of additional land to build new homes on, but the recommendation included paying the regional district $10,000 in lieu of taxes. This very small community is challenged to come up with $10,000 to pay in lieu of taxes. So they're not only expected to purchase land, but they're expected to pay in lieu of taxes. It creates further challenge. There really needs to be a serious consideration of not only cash, but land as well.

Your second question was in terms of the timing. Yes, we know it's going to take six years minimum, and at least it's a start. It's a serious start, because on the work that I have done, we started in 1985 and currently, on behalf of 11 communities that I work directly with, we have 102 claims in the system and many of those have been in the system since that point in time. We need to see resolution, because that most likely deals with one railroad. We still have the second railroad, the highway, and the hydro line to deal with. There needs to be some process that will move the claims forward in a more timely fashion.

We actually were encouraged when there was the possibility of grouping claims, because claims in that transport corridor most likely will have the very same issues, and if we can mutually agree on what types of issues can be brought together to support the grouping or the clustering of claims.... But the final end product would be to allow the first nations to negotiate on their own behalf as to whether or not it would be a cash settlement or possibly even a land settlement.

[Todd Russell, Liberal, Labrador, NL]

And the third question?

[Jody Woods]

Just very quickly, I think you were asking about one judge reviewing it versus a number of judges, and that actually doesn't seem in keeping with any other adjudicative body I've ever heard of. I guess it's intended to mirror a Supreme Court thing, an appeal, the last appeal--there's no appeal after this. Well, in any other context, you would probably have a review board of some kind, and that board might also consist of people who are experts or technicians in the field.

Just to add something to Debbie's earlier point on six years for the addressing of these claims, well, there are actually only six judges at a time, I think. As I understand, it's six full-time at a time operating, and I still can't quite see how they can manage it in six years.

[The Vice-Chair, NDP, Jean Crowder]

For the Bloc, Monsieur Lemay.

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

Good afternoon, and thank you for being here. The issue before us is extremely important, and I have specific questions for you.

Through this bill, the government is trying to avoid a conflict of interest situation. But in your preliminary remarks, Ms. Abbott, you said that this bill will not eliminate entirely conflict of interest problems. I would like you to elaborate on this. Why do you think it would be so, since the tribunal would be the one who sets the agenda?

[Debbie Abbott]

It has to do with the makeup of the tribunal. We really have no say in the composition of the tribunal.

[Jody Woods]

As I was saying before, it seems that in any other adjudicative body, if decisions are binding, then both parties typically have a say in who makes those decisions and agree on that jointly. This is not the case here. The power of the AFN to make recommendations is not the same in any way as Canada being bound by those recommendations.

The other thing is that because the cap of $150 million limits access of claims that are over that cap, those claims do not have access to the tribunal were it remedied to completely get rid of the conflict of interest. So they still face that. It's still ministerial discretion or it's still other ways of resolving it.

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

I appreciate that, but what would you recommend? The government intends to name independent judges. Right now, the government is judge and jury. It decides how much time the process will last and when negotiations will take place. It makes all the decisions.

I am one of those who believe that, with the creation of an independent tribunal, and those words speak for themselves, both the government and the first nations... There must be an atmosphere of trust, but I believe the creation of an independent tribunal would be within the parameters of the agreement with the first nations.

What would you suggest in order to put in place an independent body like a tribunal?

[Debbie Abbott]

I believe for it to be a truly independent tribunal, the first nations must have a say in the composition of the tribunal.

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

I did not hear your point of view on one aspect of Bill C-30, that being the role of the province. I would like to hear it. I understand that there have been negotiations and that you have a great deal of experience. I thank you, it has been very interesting. For example, what is the role of B.C. concerning this bill? As concerns the land issues, the government says that it cannot grant land because the province should take part in the negotiation on land claims.

Would you accept the involvement of the provinces? How do you see the role on the provinces in such a negotiation?

[Debbie Abbott]

Right now it's really unclear as to how the province will be involved. I think that's something that has to be definitely worked through.

I say that as a result of a very recent court case that happened in British Columbia, the Williams case, and having to go through that. The province had to foot the bill at the end of the day for $60 million, after so many months of court hearings and so on.

So I think there really has to be a commitment for the federal and the provincial governments to get together and sort that one out with the first nations.

[The Vice-Chair, NDP, Jean Crowder]

I want to thank you for making the long trip here, and on very short notice. I'm from British Columbia, and it's important to me that we have representatives from British Columbia.

I have a couple of questions. One is that some of the talk in British Columbia is that a significant number of the specific claims in B.C. are going to be over the $150 million level. Could you comment on that?

[Jody Woods]

I don't think I could come up with a number, but there certainly are a number. One was recently rejected based on the Weyweykum Supreme Court case. The land value of that is approximately $750 million. It was a larger commonage claim, and there are a number of those right now in the process.

I don't know how many of those larger claims are from B.C., but certainly a number. They haven't been evaluated, I don't think, at this point.

[The Vice-Chair, NDP, Jean Crowder]

So you don't have an analysis of that.

Part of this process is around the political accord. The political accord is an ongoing process that will take place in parallel with the legislation. Both provincially and federally we had a political accord signed—in 2005 federally—and I understand that there is some uneasiness with the political accords that are in place with the Province of British Columbia right now.

Do you have any comments on what needs to be done to ensure that the political accord that is part of this process actually stays in place and is respected by successive governments?

[Debbie Abbott]

I think the bottom line has to be that there really is a need for meaningful consultation with first nations.

[The Vice-Chair, NDP, Jean Crowder]

And if you are talking about meaningful consultation, what would that look like to you?

[Jody Woods]

It would mean talking directly with communities, particularly in British Columbia, because British Columbia represents a unique situation in terms of specific claims: the largest number of claims in the backlog, the largest number of new claims by far. B.C. first nations need to be consulted directly, need to be spoken with directly about this, need to be included in the process every step of the way.

Some of the uneasiness surrounding the political accord may be that we've been given assurances that the political accord will cover some of the main concerns that UBCIC has with the bill, but it's not inspiring a lot of confidence, particularly because first nations in B.C. have never directly been spoken with about the makeup of that accord and how their concerns are going to be addressed by it.