Indigenous and Northern Affairs Committee on March 3rd, 2008

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

Mr. Chairman, I have a point of order regarding two things. First, I would like to know whether we will receive the brief from Grand Chief Garrioch, and whether it will be translated.

[The Chair, Conservative, Barry Devolin]

Yes.

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

Second, don't we have this room until 6:00 p.m.?

[The Chair, Conservative, Barry Devolin]

Yes.

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

Couldn't we continue to hear from these witnesses until 6:00 p.m.? Why stop at 5:30 p.m.? In any case, the vote is at 6:30 p.m..

[The Chair, Conservative, Barry Devolin]

First of all, the brief was received today in English only. It will be translated and circulated.

Second, we initially booked the room until 6 o'clock. I anticipate that it's still ours until then. This is being televised. We informed them that we were stopping at 5:30, but we can go later if that's the will of the committee.

Why don't we continue this round. If we want to go a little longer, I'm sure we can do that.

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

Perfect.

Grand Chief, Mr. Harper, thank you. I listened to you carefully through the interpretation. There's one thing I do not understand, but which is very important. Perhaps it was badly explained to you or perhaps I am completely mistaken. Under Bill C-30, which we are presently studying, a first nation must be willing to participate in the process.

Let me explain. Subsection 15(4) reads as follows:

(4) A first nation may not file a claim if

(a) it is not claiming any compensation;

(b) it is claiming any remedy other than monetary compensation; or

(c) the amount of its claim exceeds the claim limit.

So according to the bill, you are not obliged to participate in the process. In my view, if you do so, you lose the right to claim the land in question. You are asking that sections 14 and 15 be amended so that this right is not lost. However, that is impossible under this bill. I wanted to point that out because it is extremely important.

Regarding section 21, that is something I am familiar with. Indeed, Quebeckers are very familiar with referendums. But why would you want a referendum? If the bill is adopted, no one will force you to participate in the process. However, if you do so, you lose your claim to some of the land. This refers to specific claims.

Mr. Harper, please tell me if I am completely mistaken. Grand chief, if I am totally wrong, I will certainly respect your opinion. I'm all ears.

[Grand Chief Sydney Garrioch]

Thank you, member of the committee. Let me express two points about your clarification.

First, we want involvement and we want to participate, but sometimes in this process there is little room for us to participate. This exercise in your system is one part, but how many of the members of the committee are willing to consult and come forward in these hearings across Canada in our first nation communities as well? That's another area.

Compensation for land and extinguishment is an area of concern for all of us in northern Manitoba. There is always room to establish a joint process for consultation. That's important for our people to understand. When you talk about compensation, they don't really know too many parts of it. One is monetary compensation, where you are compensated to get access to the land for resource use and resource revenue. There are so many areas that they may want to understand, and the clauses you referred to are not clear.

The other is the referendum. Why do we want to get involved in a referendum? Do they want to go through the process of a tribunal system? They need consent.

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

That's the main issue. Is that what you want? I read the Supreme Court's decisions regarding consultation. I take it for granted that before becoming involved in this type of process, you, Manitoba's first nations, will first have consulted your people. I don't know if that is clear.

[Grand Chief Sydney Garrioch]

Yes, it's very important to clarify that referendum when we talk about this. There are so many parts to it. When a leader or chief and council have an outstanding claim, and whether it goes to this system, they need consent from their people because of the land issue, and some reference on the section on surrender--whether they're going to get that land back, or they're just going to sell it, extinguish and get a settlement. There are so many parts to that referendum. But when you initiate this tribunal system, you need consent from our people, and the referendum expresses in some form how you go about that with regards to one area, surrender.

So you need the consent before you take it to the system, and we want to make it clear to the standing committee--that first step of the referendum. In any other formal kind of court ruling, you need another referendum either to accept or settle those components that a court may require from the people. It's not only the chief and council, or the leaders themselves, who can make unilateral decisions to accept.

Those are just two points on a referendum. Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

Before we go to Ms. Crowder, I would like to welcome some guests who have just arrived. Members of the aboriginal and church leaders tour have joined us here this afternoon.

Good afternoon, good evening, and welcome to you. It's kind of foreshadowing, I guess, the Indian Residential Schools Truth and Reconciliation Commission, which we are going to have in Canada in the coming days. I know you are having a busy day here in Ottawa, but we appreciate your being here, particularly David MacDonald, who is with this group and is a former member and minister in this place. I notice you found your way to the coffee urn back there--

[Some hon. members]

Oh, oh!

[The Chair, Conservative, Barry Devolin]

It was an old habit, but we appreciate your being here.

Just so you can follow along a little bit, we are discussing Bill C-30, which means to establish a Specific Claims Tribunal in Canada. We have been listening to delegations of umbrella organizations from different provinces across Canada. In our first hour today we heard from some leaders from Saskatchewan, and right now we have some leaders from Manitoba who are here and have made presentations, have had questions from Liberal and Bloc members, and now I'd like to go to Jean Crowder, the NDP member on our committee.

Jean, go ahead.

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

Thanks, Mr. Chair, and thank you, Grand Chief and Mr. Harper, for your presentation today.

I know we have a brief time, but I'm going to ask you to expand a little bit on a couple of the points that you made. I wanted to make a brief comment before I do that.

There's a lot of conversation around what the duty to consult looks like. I think, from my understanding of what Mr. Harper says, we're on the same page on that, in that the crown cannot delegate its duty to consult. It's the responsibility of the crown to consult, and it must do that in good faith with first nations. I think that's an important point, because the exercise the Assembly of First Nations was engaged in was not a duty to consult. It was a dialogue, it was a facilitated process, but it certainly doesn't meet the Supreme Court outlines of what a duty to consult looks like.

I just wanted to make that comment. Perhaps you have some additional comments.

But let me ask about the two other points I wanted you to clarify.

At the outset, Grand Chief, you talked about this bill not meeting the test of independence. I wasn't quite clear what your meaning of that was.

The second piece I'd like you to address--and perhaps Mr. Harper might be able to deal with this--is that in subclause 23(1) it says, “The Tribunal has jurisdiction with respect to a province only if the province is granted party status.” I think that's a really important factor. I come, of course, from British Columbia, where it's only been in recent years when the Province of British Columbia has actually agreed to come to the table around treaty and comprehensive land claims. So I wondered if you could comment on your view of that clause of the bill around provincial involvement.

[Grand Chief Sydney Garrioch]

I'll speak on the first area you wanted clarification on, the independence. What we're identifying here is that we don't want the act or tribunal system to be under the government. We want that process to be independent, away from the system. That's an area that we want to establish if it's going to work in the best interests...or mutually for both, not only for the government but for the first nations as well.

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

Then in your view does Bill C-30 address that issue of independence, or does there need to be something in here that makes it more arm's length? Certainly the negotiation process isn't arms length; the tribunal may be arm's length, but the negotiation of many claims in theory is supposed to prevent claims from getting to the tribunal, and that's not arm's length.

[Grand Chief Sydney Garrioch]

Yes, that's what we're trying to point out on that independence issue. The government usually adds a lot of influence to the system of the appointees of the judges, or the federal system, on how to act and deal with these items. So it's very adversarial at times as well, and it's time-consuming to put forward and to deal with these outstanding claims in the most effective way as well. That's what we're trying to point out in that area in one component.

Now, would it work? That is another issue in terms of being effective, and that's another matter to be considering. While we point out the areas, it's not reflected in our presentation.

The other point was the duty to consult?

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

It was subclause 23(1), the provincial aspect.

[Louis Harper]

Regarding the clause you're talking about, I think our first nations have had a long history of dealing with the province with regard to lands. As you know, the treaty land entitlement involved the third party, which is the provincial government. Certainly in this process itself, I think it's inevitable that in some specific claims the province will have to be seen as a party to the process. So I think it's important that they be involved and I think the bill should be amended to be more specific in that intent to involve the province.

Of course there's also mention of the NRTA from the previous presenters, through which lands are to be returned back to the federal government for the benefit of first nations in settling specific claims. That's another reason I think provinces should be involved.

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

Do I have time, Mr. Chair?

[The Chair, Conservative, Barry Devolin]

You've got two minutes.

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

I'll just go back to the provincial issue, then. Do you have some suggested amendments? My understanding right now is that if the provinces opt not to be involved, in effect that limits the first nations' ability to come forward and file a specific claim. Are there some suggestions around what can be done around that?

[Grand Chief Sydney Garrioch]

There is one area of concern that we didn't put in our presentation because of the time issue. We say the 1930 natural resources transfer act is unconstitutional. We have a treaty relationship with the federal government. Our fiduciaries and trustees are the Department of Indian Affairs. They are to look after our interests and the well-being of our people in maintaining and looking after the land. That's one matter.

Now, since Canada put forward this act, the provincial government to some extent has to be involved, because there are some areas where they have already sold the land. They need to fix that component as well, because we are talking about third party interests as well. That also implicates the system, and they need to handle or resolve these issues as well on part of the provincial involvement.

[The Chair, Conservative, Barry Devolin]

Thank you.

Mr. Bruinooge is next, from the Conservative Party.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair. I would like to first mention that I'm going to split some of my time with Mr. Storseth.

I'd like to thank our witnesses today. Of course, the grand chief hails from my neck of the woods, and I definitely appreciate his being here.

Perhaps I'll start with my initial point on the consultation process. Of course the federal government, in agreement with the AFN, had the consultation process brought about with the Assembly of First Nations, and they did do that, as testimony to us today has indicated, in relation to consulting with the chiefs across the country.

Another point I would like to make is that the Assembly of Manitoba Chiefs' grand chief and the Assembly of Manitoba Chiefs as a group have supported this process as well to deliver the bill that we have before us today. I think it's important to note that there is another body that represents chiefs in Manitoba with an opinion that is different from that of the witnesses today.

Having said that, I respect the right of the grand chief to make his testimony. Of course he represents his people and he is eligible to make these positions.

In relation to a couple of the opinions you've brought forward, specifically in relation to land and reacquisition of reserve lands, which I think was referenced in some of your testimony, this is a point that was raised by other witnesses in the sense that there was some concern that the reacquisition of reserve land couldn't be subject to a specific claim. That is actually incorporated in the bill. In the event that reserve lands that weren't properly allocated are a claim, they could be brought forward.

You are correct in the sense that this tribunal will not be able to deliver in land as a compensation. There's no question that this would be impossible for the Government of Canada to do, in terms of expropriating land and delivering it as part of a settlement. As such, the Assembly of First Nations, in conjunction with the Government of Canada, negotiated on this point to the outcome, which will be a cash allocation. I think this is the best scenario we can have to be able to deliver the outcomes people are looking for.

Perhaps we could move to one particular element of your testimony that I found interesting. I know Mr. Lemay has already touched on this, which is the topic of referendum that you referenced. Perhaps you could tell me a bit more about what you're thinking in relation to having a referendum on the actual outcome of the tribunal, whether it be for or against. Could you talk about how the referendum would be utilized in both those scenarios?