Indigenous and Northern Affairs Committee on March 3rd, 2008

[The Chair, Conservative, Barry Devolin]

Good afternoon, everyone. I'd like to call the meeting to order. We are here today to continue our hearings regarding Bill C-30.

Committee members will remember that when we started the process of hearings on Bill C-30, we decided that we would start by hearing from the minister, and that's how we kicked off our hearings. Subsequently we have heard from people from umbrella organizations in each of the different provinces. We've heard from British Columbia and Ontario already. Today we'll hear from Saskatchewan and Manitoba. We will continue with this process and hopefully complete all of the provincial groupings before we rise for Easter.

I have a couple of comments for my colleagues. You may recall that initially we had agreed that we were going to sit a bit longer today because of the very large number of witnesses we were going to have. As it turns out, two or three of the Manitoba witnesses were unable to be here today. We still do have representation from Manitoba, but it's a much shorter list. So we will go back to our normal finish time of 5:30.

We are also televised today, so straighten your ties, everyone, and pay attention.

With that, I would like to welcome our three witnesses today from the Federation of Saskatchewan Indian Nations: Chief Lawrence Joseph, Vice-Chief Glen Pratt, and Executive Director Jayme Benson.

Gentlemen, if one or all of you would like to make a brief presentation, we would appreciate that. Questions from committee members will follow.

Chief Joseph.

[Chief Lawrence Joseph, Federation of Saskatchewan Indian Nations]

Thank you very much, Mr. Chairman, and good afternoon to the honourable members of this standing committee.

I want to bring greetings on behalf of the Saskatchewan first nations chiefs, council members, our senators, our first nations veterans, and our membership.

I'll give you an overview of who we are and what we are. We are probably the oldest and longest-together organization in Canada. This year we are celebrating 61 years of existence as an organization. Call it an advocacy group, if you wish, but it's a treaty organization.

In Saskatchewan, 75 first nations were united in this effort to support Bill C-30. The approximate population of first nations status people is 122,000. I might add also that we do have a very young membership in our first nations population. Our average age is 23.

Some of these things that the Government of Canada is doing are fairly urgent. I'm very pleased to report to the committee that Saskatchewan first nations chiefs are certainly very supportive. We have attached a resolution, dated the middle of February, that fully endorses this and supports the work that was done by the joint task force.

I was very privileged, to say the least, to be part of that task force. One of our technicians, Jayme Benson, was also a member of one of those committees. I was privileged to serve along with our Assembly of First Nations colleagues on the legislation drafting committee.

I might just leave it at that for now, Mr. Chairman, and go to the nitty-gritty, if you wish. You do have copies of our presentation. It is a very short presentation.

I will say to you up front that I personally have served in the government for 30 years and also as a chief for 10 years, and I have never seen this high-level type of commitment from government to actually do something jointly with first nations in a very strategic and structured way. I applaud that. Certainly the political accord that was signed also gives us great hope that there will be work done, futuristic work done, based on mutual respect.

I just wanted to say those words as an opener, Mr. Chairman. If my colleagues here want to say something, I guess this would be the time to do it, with your permission.

[The Chair, Conservative, Barry Devolin]

Thank you.

Vice-Chief Pratt.

[Vice-Chief Glen Pratt, Federation of Saskatchewan Indian Nations]

Thank you, Mr. Chairman.

Good afternoon to all the members of Parliament here today. It's an honour to be here today to talk about the process--not only about the bill, but as the chief has mentioned, about the process that's happened.

I think many times the federation has come here to speak about a reactive situation to bills that have been passed that have an impact on our treaty rights as well as our communities. I think one of the very important things about this process is the process itself, the joint development of a bill that's going to have a major impact, not only on government but on first nations. If we could create this process across the board for many of the other sectors, we would have a much more efficient system of legislation, where we're actually involved in the drafting of the legislation that also has a great impact on us.

Personally, I think it's a real stepping stone forward in terms of having first nations at the table jointly recommending legislation. I think that in itself allows us to have greater input into the bill itself, rather than always reacting to the bills. It seems that a lot of our communities are left in the dark and having to react to bills and the effect that has had. As a result, that legislation itself is sometimes brought to the Supreme Court of Canada because we haven't had input on it. I think we're setting a good precedent in terms of the duty to consult in some of the cases at the Supreme Court level.

Also, I think in Saskatchewan we have over 95 outstanding claims waiting to be resolved over the last 15 years. As a result, this bill hopefully will give our communities the opportunity to deal with these outstanding claims and be in a position to benefit themselves holistically in terms of their economics, their community, their housing, and many other issues. When money is brought into a community it has a great impact on giving that community new hope of having a better community, and I think that's what we're talking about.

The other issue for us is the whole idea of justice. We're often asked, “What is justice, and what does it mean to first nations?” Ultimately, what we're talking about is something that was wrongfully taken from first nations that has to be corrected in a timely fashion. So ultimately we're talking a little bit about justice as well, justice for first nations, and I think that's an important part of this bill as well.

I'll keep my remarks very brief. Once again, thanks for the opportunity to be here today and say a few words. Thank you very much.

[The Chair, Conservative, Barry Devolin]

Thank you, Vice-Chief Pratt.

Mr. Benson, did you want to add something?

[Jayme Benson, Executive Director, Federation of Saskatchewan Indian Nations]

I'll just add a few comments.

Obviously I would just comment on the bill technically. I would have to say that it was jointly developed, and things are a compromise. It doesn't do absolutely everything, but I think it's a big improvement over the current process for specific claims that would fall within the jurisdiction of the tribunal. I think in that sense it's really positive.

A couple of the issues that are really concerns in Saskatchewan are things like delay, and the bill does legislate timeframes to deal with these claims. It's still three years to respond to a claim, but that's much better than the current system, where there are no timeframes. One of the biggest concerns for Saskatchewan bands is the conflict of interest that ultimately it was Canada that decided claims. This bill creates an independent tribunal, which will actually take that and put in an independent body composed of superior court judges.

I think those two aspects alone are a huge improvement over the current process. I think that's, technically at least, why we see a lot of positive in the bill.

[The Chair, Conservative, Barry Devolin]

Thank you for those comments.

We'll go to questions. The first round of questioning will be seven-minute time slots. You may have been here before and be aware of this, but that's a combination of both the asking and the answering of questions. The members will get seven minutes, and I will try to politely interrupt at the end of that period to move on to the next member. Subsequent rounds are five minutes each.

I'd like to begin with Ms. Neville, from the Liberal Party.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you.

Thank you very much for being here.

Chief Joseph, let me thank you on behalf of my colleagues for your participation in the process, the direct participation.

You're all here in support of the bill, and we appreciate that.

There are two questions I wonder if you could speak to. First, could you tell us what it would mean in real terms or give us examples of first nations communities in the province of Saskatchewan? When this bill is implemented, what will it mean for your communities? You identified that there were 95 specific claims. I don't know the value of them, the nature of them, but could you give us a little bit of insight in terms of what it would mean?

And I have a second question, if we have time. You referenced the process of developing the legislation. I wonder if you could speak to the strength of that, as you saw it, and perhaps if there were weaknesses that could be improved upon.

[Chief Lawrence Joseph]

Thank you for those questions.

Simply put, the process that was there before did not work. The Canadian government, of course, was in a very serious conflict situation. The timeframes were non-existent, and the Indian Claims Commission could not compel them to do anything. It's just very much a flawed system.

There are 95 claims outstanding. I think some of them are as old as 15 years. I think that's one of the oldest ones. When we see that happening...there are levels of frustration and money that could be better spent than fighting the government. We try to work within the parameters of the criteria put before us, but often governments and senior administrators change, and we have to go through the whole thing again. The Department of Justice puts things on hold. It's very frustrating. Now that it's out in the open, at arm's length from government, and independent, I think it's going to move further.

Here is the bottom line. I can speak for the chiefs in Saskatchewan in saying we are tired of depending on government. We are so dependent on government from the womb to the tomb on everything. In order to be self-sufficient, let me say it: we need our land back, to build together industry and to put together opportunities for our people. We can't do that if we're restricted to parcels of land that are often not usable except maybe to build toilets on. Let me just say that.

The number of claims there are going to push ahead that independence for our people, that place where we need to do economic development, and that's the push from Saskatchewan. We are trying to work with government to put an investment on economic development, thereby bringing down the social costs. We're tired of being dependent.

Personally, I am also tired of meetings. Every time we meet with senior-level administrators, all they say to us is, “I don't have the mandate to do this. I don't have the mandate to do this because it's got to come from our bosses, the elected members of Parliament, or some type of legislation.” The beauty of this is that it's actually legislated. No senior-level administrator can come and waste my time and say, “Well, you spent $3,000 to come to Ottawa, but I don't have the mandate to do anything.”

Enough already.

I just want to say that for the 95 claims that are there, there's actually money set aside. The Prime Minister of Canada himself actually came out on June 12 and said, “Justice at last”, and we got hope that this will do it.

In terms of how much money is going to be realized in Saskatchewan, 95 times $100 million is what? I'm not sure. Maybe, Jayme, you have a ballpark figure.

Before I go to my technician, and also the vice-chief, I want to say the process is long overdue. The Prime Minister of Canada admits there is something to be done--not necessarily admitting they stole land, but admitting there is land that's owed to first nation people and that there is outstanding business.

I don't want to marginalize the authority of the Minister of Indian Affairs, but that was coming from the Prime Minister of Canada. It was the Prime Minister of Canada saying we will immediately put together a process based on mutual respect. He actually put together a very senior-level team to sit with very senior-level people from our side, the AFN, and the Department of Justice people. They were very senior people and actually worked together.

Every two weeks we met across Canada. We hammered it out, and we didn't fight; we just worked together based on mutual respect, and I appreciate that. The process that got this suggested bill going is workable because there's political will on both sides.

The other thing regarding the process is that if it's passed--and I hope it is--it's going to mean, as I mentioned before, the that Department of Indian Affairs and the senior-level deputy ministers will have a tool they can use to actually get to work on addressing the outstanding business.

I might add also add, talking about treaty promises, talking about outstanding business, and talking about the spirit of treaties, that if we can do this in specific claims, we can do this in health, education, housing--you name it--and it doesn't have to be threatening to any member of Parliament or any party across Canada, because it's an outstanding debt, and I think this process brings hope to our people in our territories.

I hope that answered your question. If it didn't, I would be open to some suggestions.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

In part, but you're talking about the process of discussion that took place between the AFN and the government. There have been positive and not so positive comments on it. Can you make any concrete suggestions on how that dialogue and working together might be improved? It's one of the first times in the last few years that has happened. Did it work well, and are there recommendations to make it even better?

[Chief Lawrence Joseph]

One of the things I might add, Mr. Chairman, is that there was actually will within the committee to say, “Well, we've always done it this way”, from the government side. There were no excuses.

I would like to offer improvements on this, but I have very few. The process that was employed was right from the top. I think three regional chiefs represented AFN, including me, B.C., and Alberta, plus our lawyers. I think the Department of Justice also had some excellent people come out.

The process, the format, and the vehicle that was used were such that timeframes and money were set aside at a senior level to do this. We're used to trying to scrimp and save and find money to go to meetings. Here it was all there. It was done because the Prime Minister of Canada said that it had to be done. Now we're here to support that bill.

On the process involved, I have very little to look at in terms of improving the system, but it was the first time in my 40 years of public service. I have never seen this before.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you.

Monsieur Lemay from the Bloc, for seven minutes.

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

I liked what you said, Grand Chief; it was very interesting. The committee is used to hearing from people, including native chiefs, who are more often in a confrontational mode rather than a conciliatory one. I realize that you are first and foremost in a conciliation mode. I nevertheless have a few questions.

I studied the bill thoroughly. Some witnesses told us they would rather not have a lone Superior Court judge to hear a case, but rather a group of three people, such as a judge and two assistants. I would like to know what you think about that, and in particular about two other points. The first concerns court fees. The bill says that a tribunal may impose fees, which are called costs. This is stipulated in subsection 12(3), which reads as follows:

(3) The Tribunal's rules respecting costs shall accord with the rules of the Federal Court, with any modifications that the Tribunal considers appropriate.

So if a member of your band made a claim in Saskatchewan, that person might have to pay court costs.

The bill concerns the federal government and first nations. Subsection 20(6) reads as follows:

(6) If the Tribunal finds that a province that has been granted party status caused or contributed to the acts or omissions referred to in subsection 14(1) or the loss arising from those acts or omissions, it may award compensation against the province to the extent that the province was at fault in causing or contributing to the loss.

So the court might find that a province is at fault. But what happens when a province has not been granted party status? Could this happen in Saskatchewan? Have you studied this possibility? I would like to know what you think about these three things.

[Chief Lawrence Joseph]

Thank you.

[Witness speaks in his native language]

I'm just kidding you.

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

C'est bon ça. Nobody understands.

[Chief Lawrence Joseph]

I don't think the interpreter does.

I'll go to the last one, sir, if I may, and we'll give the others to our panel.

It would be our dream to have some of these hearings in Saskatchewan. It would be minimal in cost. We wouldn't have to bring the whole band in; it would be preferable to have a judge deal with our issues right at home. However, whether it's a single judge or a panel of judges, it doesn't matter, as long as the issues are dealt with in a fair manner.

As far as the cost is concerned, again I'll go to the technicians.

With respect to the Province of Saskatchewan, let me go back to December, when they had their throne speech. It gave us a lot of hope, on two fronts. One is that they said the treaty is a living, breathing document. The second is that they are going to be working with us to actually incorporate treaty education and write the regular curricula in schools. That way the myths and misunderstandings as far as treaties are concerned will be wiped away in due time.

The other thing is that the Province of Saskatchewan, under the new premier, has very much committed to working with us on the economic development side. They have created a vehicle called Enterprise Saskatchewan. To that end we are also creating, as a federation, the Saskatchewan First Nations Economic Development Authority, to try to get out of dependency on government and to be self-sustaining in our work. So far the Saskatchewan Chamber of Commerce, the City of Saskatoon, and the City of Regina have welcomed urban reserves.

I'm very confident. I haven't seen anything at all, at least in my term for the past 10 years, where the province is trying to throw curves at us in getting our land back. I haven't seen any situation where the province would want to fight us. I think they're very much looking at supporting us in getting land and also economic development opportunities.

I have not run into any great difficulties, except the duty to consult, which is a decision that was made. If it's applied properly, I think the province will have to come along for the ride.

I don't know if I answered that, but as far as the cost and the other factors go, I think the technician might be able to answer.

[Jayme Benson]

I'll try.

On the provincial thing, as I understand the bill, a province can't have awards against it unless at the outset it agrees to be bound by the decisions. So a province has to agree to be granted party status before it can have an award against it. I know that was a concern of ours, that if a province is in, then it's in all the way, but if it chooses not to, then it can't have an award against it. I think that would maybe alleviate some of those concerns.

On the issue of costs, as I understand it the process will be funded, so ultimately first nations that participate in the tribunal process will get funding. If they choose to withdraw before a tribunal decision is granted, as I understand it, costs can be awarded against them by the tribunal as well. I think it would have to sort out federal funding for that.

The other question you asked was interesting, about whether a panel of three would be superior to having one judge. I read some of the transcripts, and I thought a bit about that. I do think in a lot of cases three minds are better than one, but having someone with the ability of a judge sets up a good process. I think in Canada we have respect for the independence of the judiciary and the ability of the people who are on it. One of the most important things will be to assure that first nations, through the Assembly of First Nations, has input into who those judges are. If you select good people, hopefully there will be good results.

Does that answer your questions?

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Lemay.

Ms. Crowder.

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

Thank you, Mr. Chair.

And thank you for coming before the committee today.

I have a couple of questions.

One is on the duty to consult that you talked about. I think you're probably well aware that there have been some witnesses before the committee who have some differences with the bill. I go back to the national chiefs assembly in December. My understanding from the national chiefs is that they saw this as an ongoing process so that people could come before the committee and express their concerns or suggested amendments, and that in fact the process that happened was actually not a duty to consult, but rather a facilitated process and dialogue, and that Supreme Court decisions actually say that only the crown can discharge a duty to consult; it can't delegate it out to other companies or whatever.

I'd like you to comment on that.

The second piece I'd like you to comment on is the fact that the tribunal is actually an end result rather than a beginning result. The hope is that negotiation will happen that will actually take a significant number of those specific claims off the table, and they actually won't get to a tribunal.

But the two questions I have on that are whether you have confidence that sufficient resources will go into that negotiation process to actually see that process speeded up. Secondly, the claims that are currently in the system will actually have to be resubmitted. The clock gets set back to zero, and they will then have a three-year period of time in which they can be either negotiated or not and then could possibly end up in a tribunal. I wonder if in your view that will actually help alleviate the backlog, given that, it seems to me, a significant number of people will be disadvantaged because they've already been in the system for 15 years or whatever.

So I wonder if you could comment on those two pieces.

[Chief Lawrence Joseph]

Mr. Chairman, on the duty to consult, given the nature of the work that was done, as you know, the bill had to be kept secret. It's very difficult when I go back to my region where the chiefs are asking what's happening and I can't tell them. That's the nature, and I think based on the mutual respect of the joint task force, we kept our silence, and they kept their silence. Therefore it was very difficult to go and ask the duty to consult requirements of our chiefs.

But the bottom line is that our chiefs very clearly dating back to 1998, when I was again on a joint task force to try to drum up a better deal with specific claims, have told us unequivocally to go and find a better deal, because this was not working. They told us to get a better deal than what we had so far.

So in Saskatchewan--I can only speak for Saskatchewan--regarding the dialogue that happened, we just gave the highlights of what was going on and the nature of the work that was done, the three committees that were there, the commitment from the Prime Minister: justice at last. All this language helped to actually ease the minds of those people who were thinking, “Well, here goes the government again. They want to draft something and impose it on us.” That didn't happen, fortunately, because we were very careful to articulate that there is a better deal coming. I assured the people that this is something that they've asked for. In Saskatchewan at least, there was no loud requirement or uproar saying that we didn't ask them. That didn't happen in Saskatchewan.

At the conference, the assembly you heard about, at which some of this information was actually on the floor, some people didn't see that there was any consultation. I heard about that. However, having said that, in Saskatchewan and also in some regions across Canada, it was just the failure of the--and I don't want to criticize my colleagues--other organizations to present dialogues where they were needed. There were little resources given to us to do just that, and we did our dialogue the best way we knew how, through the telephone, band meetings, tribal council meetings, and wherever we could, and thereby we actually laid that to rest. So there was no big uproar as far as the requirements under duty to consult go.

But I know there was a contentious point as it relates to claims that are more than $150 million. There's a process for that, and we do support those first nations that are in that situation. As to whether there are sufficient resources to do this work, of course there never are sufficient resources. But compared to the 1998 bill or the joint task force, this is actually money committed by government: $250 million to do this work, to clean up the backlog, but also to give hope to those first nations that have been waiting for 15 years or more.

I'd like to go to maybe either Chief Pratt or Jayme Benson to talk about the resubmitting and all that.

[Jayme Benson]

On the resources thing too, the bill doesn't commit any resources. That's not really the purpose of it. It sets the tribunal. Obviously the idea is, if the tribunal works really well, claims will all be settled in negotiation, so you'll hardly have to use it.

But obviously if you're going to deal with the backlog, correspondingly there have to be resources not just for settlement dollars but also for process. I'm actually on a committee where that's under discussion. There is more work. I think the political accord recognized that.

In terms of the clock being reset, I know if you're a first nation, you said, well, I've been waiting 10 years and now I have to wait possibly another three. It's not an ideal situation. A first nation would like to have their claim dealt with as quickly as possible. But I think on the other side you have to recognize that there is an 800-claim or 1,100-claim backlog, depending on our numbers or the federal government numbers. So there is going to have to be some time to at least respond to all of those. At least there are legislated timeframes. It's not perfect, but it's better than what we have.

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

I just want to come back a bit to the negotiation process. I noticed in your presentation you talked about dispute resolution. Are you talking about mediation there?

Of course, in the past, the federal government had a very poor track record around agreeing to mediation. It was really unclear when the minister came before the committee exactly how this new alternative dispute resolution centre was going to work.

[Jayme Benson]

That was actually one of the subcommittees I was on. I do a lot in negotiations. One of the big problems we have is that when there is a dispute, the federal government almost never agrees to even non-binding mediation. At most, we have the Indian Claims Commission facilitating, and that's about it.

My understanding is that this centre will be focused on all areas of alternate dispute resolution up to arbitration, which will not be included. That was an issue. Personally, I would prefer it if they did have that ability, because some issues may be small enough that you don't want to go all the way to the tribunal, if it's a very specific issue. Certainly ADR is a way to help with negotiations and mediation as well.

[The Chair, Conservative, Barry Devolin]

Thank you.

Mr. Bruinooge, for seven minutes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I'd like to thank all of our guests today, especially Chief Lawrence Joseph. I know you've spent a lot of time advocating on behalf of economic development in your region. And having met you a number of times, I know you're quite committed to seeing first nations in Saskatchewan be able to achieve the economic outcomes that we would all like to see.

If I could also go to some of the words you've spoken in relation to the bill, I definitely appreciate your compliments for the way this process has unfolded. There's no question that it has had the support at the highest level. Those negotiations took place over the summer. It culminated in the fall with an excellent bill, which not only you took part in drafting but the national chief did also. There was an endorsement of it through a political accord, which I think speaks to just how much effort was put in by both sides.

I would also like to thank you for clarifying some of the elements of the consultative process that the AFN took part in, which you were a part of. I know that in some of our previous meetings there have been some misunderstandings in relation to that, but I'm glad to see that you've brought it to the table today and clarified your position on that matter.

Going perhaps a little further into some of the details, you mentioned that there were about 95 outstanding specific claims in your region of Saskatchewan. Do you have any idea of what percentage of those claims might be in the range above $150 million?