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

[The Vice-Chair, NDP, Jean Crowder]

Mr. Albrecht was actually trying to get in on the end of your questions.

Monsieur Lemay.

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

I need a clarification from you, Ms. Abbott. I listened carefully both in English and in French.

Would you prefer a tribunal made up of three judges, similar to an arbitration tribunal, in which one person is named by the community, another one by the government, and both of them name a third judge? Would you like to have three judges? What is it exactly that you want?

[Jody Woods]

We would probably have to consult with the communities with that to see what they would feel comfortable with. But the idea of having joint appointments of whoever sits on the tribunal is what is the important thing.

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

I am sorry, but the jurist in me has to tell you that, as a lawyer, I never selected the judge before whom I would plead my causes. I am just trying to understand. I am really open-minded, but I do not see why it should be any different in this case. If there is a discussion over a $15 million claim by a community, and it is taken to the tribunal, the judge is above the parties. You present your arguments and the government presents its own, and the judge renders a decision, and it is final and non appealable.

I am wondering whether this should be the way to proceed, instead of having one party chose its judge. If everybody begins choosing his or her judge, there will be no end to this.

[Debbie Abbott]

I guess the bottom line would be to have the first nations' input, so that when there is a selection process it's fair and just and there is confidence in the final process that's in place. This is a very serious process, and we need assurances that there will be a fair outcome. So there needs to be a process for the first nations to get that sense, that comfort, in terms of how they're going to be heard. If it's through the selection process, it would be the first nations who would make the decision. But we need to have an opportunity for the first nations to be consulted and for them to provide the input to this very crucial question that you have. Right now we're at the end of the results and we're being told what that composition would possibly look like. We really should have been more informed of the process about political accord and everything that had followed suit. We wouldn't be making this kind of presentation if we had that level of informed involvement.

[Jody Woods]

In other circumstances where the decisions of the tribunal are binding on both parties, they agree to an arbitrator or a panel of arbitration, and this is the approach.

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

It is important, and I think this is the crux of the matter. In an adversarial system, each party has its own position, and the judge is impartial, hopefully. He or she should be neutral even if he or she is a Liberal or a Conservative. But this does not seem to be to your liking. You would rather have an arbitration tribunal where the first nations would name one member, the government another one and both would agree on the third member. I sense some suspicion here. Is that the best system?

[The Vice-Chair, NDP, Jean Crowder]

Mr. Lemay, your time is up.

Ms. Woods, do you have a very brief comment?

[Jody Woods]

My understanding, in terms of accessing the tribunal, is that it's to try to make it as non-adversarial as possible. Take, for instance, the idea of being able to cross-examine witnesses when most of the witnesses would be elders from communities, who hold the knowledge that sometimes can make a claim. Setting it up as an adversarial system is not making it accessible to all those witnesses, because it makes it too difficult. I guess that's the point of departure. In this particular issue its whether or not the adversarial nature--

[The Vice-Chair, NDP, Jean Crowder]

Thank you, Ms. Woods.

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Madam Chair.

I'm going to split my time with Mr. Albrecht.

Actually he's holding up a document here, “Justice at Last”. This is a document the Government of Canada sent out in June 2007 to all first nations leaders across the country. It outlined much of what we were considering in the drafting of what is now known as Bill C-30 . After this was sent out and agreed upon with the AFN, we entered into a good-faith negotiation with the Assembly of First Nations on Bill C-30 . Though the drafting of a bill is usually done behind closed doors before it's presented, it was done with the AFN, and as such we as a government feel that we entered into this in good faith with the body that represents first nations people across the country.

My question to you Ms. Abbott is this. Do you believe that AFN is able to enter into that type of negotiation with the Government of Canada? Does it have the legitimacy to do that?

[Debbie Abbott]

There is a lot involved in that question, and I don't know if we really have the time to answer that, other than the fact that I really feel that B.C. needs to be consulted, and there needs to be a process for B.C. to really make an informed decision.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Go ahead, Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I just want to follow up on the point that this document not only went to each first nations leader and each group within Canada, but actually to each first nations person. It's clear on page 12, which outlines the next steps, that over the summer of 2007 discussions would take place between federal officials and first nations leaders, and it goes on about the process. It would seem to me that if I had received this and became aware that a process was going to be initiated, and if I had deep concerns about it, even in the general sense, I would try to get those concerns registered. I am disappointed to hear that, in your words, less than adequate consultation has occurred, because the government did everything we could have done to get the word out.

On the point of feedback and discussion, I understand that the special chiefs assembly occurred in December 2007. I'm just wondering if you could comment. I don't know if you or Chief Atleo would have been there. What was the outcome of the discussion surrounding Bill C-30 at the chiefs assembly in December 2007?

[Debbie Abbott]

I believe I was there, but I did not participate in that topic at that time. I don't really recall, other than someone highlighting for me that this is it, this is our opportunity for consultation: where do we go from here? There was a bit of concern because of the lack of opportunity to have a forum dedicated to walking the leadership through what was being intended.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

So this was distributed, there was the first reading of the bill, upon which the leadership of first nations communities across Canada would have been informed of the actual specific content, and yet at this forum in December, you say you don't feel there was adequate opportunity given for discussion and input around Bill C-30.

[Debbie Abbott]

Yes.

[The Vice-Chair, NDP, Jean Crowder]

You have about 20 seconds.

[Chris Warkentin, Conservative, Peace River, AB]

I may just follow up on that.

In terms of the consultation process, what would have been more effective, in your estimation, maybe at that last forum? There has been a significant amount of money spent. My understanding is that $1.5 million was allocated for the information to be distributed and for consultation to take place.

[The Vice-Chair, NDP, Jean Crowder]

It is time to wrap up, Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

I'm wondering what you feel that money could have been more effectively spent on so that you would have been more informed, beyond what was done.

[The Vice-Chair, NDP, Jean Crowder]

You're asking for more than a two-second answer.

If you can be very brief around it....

[Debbie Abbott]

Basically, talk to communities.

[The Vice-Chair, NDP, Jean Crowder]

I'm next on the list, so I'm actually going to follow up on that.

Clearly, based on the questions I'm hearing from committee members and the concerns raised about consultation, the crux of it is going to be the consultation piece and whether or not people feel they've been included.

This brochure that's being bandied about is an example of information being sent out to people, but whether that's considered consultation is a really good question. Many of us who have had the opportunity to work with people on reserves know that often mail delivery is highly unreliable. There is an assumption that people actually get the information in their hands. For many people, English is still their second language, particularly for many of the elders. Whether or not people's understanding of the information presented is such that it could be deemed consultation when there is no actual opportunity for them to have input....

I guess because I'm from British Columbia I'd also like to comment on the fact that UBCIC represents a portion of first nations bands in British Columbia, but the First Nations Summit also represents a portion . And there is a very strong leadership council that comes together to work collaboratively across first nations in British Columbia. So while UBCIC represents 80 first nations, that does not reflect how closely first nations in British Columbia work across a variety of interests.

I wonder if you could talk about the consultation process in the context of the amount of time that was allowed for consultation, the lack of recognition of a nation-to-nation status in Canada, and having three or four or five months in which you were not able to share information with the people, because that does seem to be where people are going to come down.

The AFN had an opportunity to consult. You have a disagreement with what's in the bill. The implications are either that the AFN didn't do their job or they're not a legitimate organization, which is one of the arguments I heard the parliamentary secretary use.

My take on that is that it's not a fair representation. What you actually need is added time and resources to be able to conduct that consultation, and there needs to be a respect for a nation-to-nation process.

So perhaps you could comment on that.

[Debbie Abbott]

There really is a need for proper time and necessary resources.

One of the ways we look to achieve support from political organizations is to see when they are having their meetings and then bringing forward a resolution that is consistent among the three political organizations, so that we have consensus through them as a part of the First Nations Leadership Council. Each organization--the Union of B.C. Indian Chiefs, the First Nations Summit, and the BCAFN--has an opportunity to bring it forward on its respective agenda.

It's discussed, and then it ultimately shows the support of a majority of the communities, because there are communities in British Columbia that are not party to any of those three organizations. But at least you can start to see the foundation piece having consensus through those three political organizations.