Indigenous and Northern Affairs Committee on March 10th, 2008

[The Chair, Conservative, Barry Devolin]

Good afternoon, everybody. Welcome to meeting 18 of the Standing Committee on Aboriginal Affairs and Northern Development. We will be continuing to deal with Bill C-30, an act to establish the specific claims tribunal and to make consequential amendments to other acts.

As committee members will recall, we are receiving witnesses who come from umbrella organizations from different provinces and regions across the country. We have had delegations or individuals here from British Columbia, Ontario, Manitoba, and Saskatchewan. Today we will be hearing from some folks from Quebec, and possibly from Atlantic Canada—I'll get to that in a minute.

Then, on Thursday, we'll be finishing this round, with witnesses from Alberta and the territories.

Before I go to our guests from Quebec and Labrador today, I just want to let people know that our second panel, which was to be the Atlantic Policy Congress of First Nation Chiefs, is unable to make it. They're stuck in Halifax under a blanket of snow.

We were also to have Mr. Paul, from the Union of New Brunswick Indians. Is Mr. Paul here? I don't think he is. If Mr. Paul does not arrive—and I'm presuming he may very well be unavailable because of weather as well—we will add these individuals to the list of those who will be attending on Monday, March 31.

You'll recall that we left one meeting open at the end of this process as a makeup meeting for individuals or delegations who could not come to their allotted meeting. It turns out that was fortuitous, given that, hopefully, we'll be able to get the Atlantic Policy Congress folks here at that time.

I would suggest that we go ahead with panel A. If Mr. Paul arrives in the next hour, we will deal with him today. Obviously it would be less than ideal to have one of the Atlantic witnesses and not the others. On the other hand, it would seem a shame to have Mr. Paul come all the way to Ottawa and then not hear from him. So we will play that one by ear. If he does not arrive, then we will have just the one panel today.

As one more little bit of business, I understand, Monsieur Lemay, that you have a group of guests, and I wonder if you could tell the committee who has joined us here today.

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

Thank you, Mr. Chairman. Thank you for allowing me to briefly introduce and welcome my guests. There are 31 students from the École nationale d'administration publique du Québec as well as my assistants from my Rouyn-Noranda office. They are working on their masters in public administration and are accompanied by their professor, Mr. Rémy Trudel.

I welcome you, ladies and gentlemen.

[The Chair, Conservative, Barry Devolin]

Thank you.

Thank you for being here today. We've probably broken a whole bunch of rules by introducing people from the audience, but we'll take that chance.

I would like to move on to panel A. From Quebec, we have, from the Assembly of First Nations of Quebec and Labrador, Chief Conrad Polson, from the Timiskaming First Nation; Claude Picard, the director of administration; and Peter Di Gangi, who is a technician from that organization.

Welcome, and thank you for showing up even through all this snow.

If you'd like to make a 10-minute presentation, we'll follow that with questions from committee members. So I turn it over to you, Chief Polson.

[Chief Conrad Polson, Timiskaming First Nation, Assembly of First Nations of Quebec and Labrador]

Meegwetch. Since you're breaking the rules, I'd like to say that I had a bit of a problem getting in the doors here today. The guys gave me a hard time because I'm wearing a Montreal Canadiens watch.

[Voices]

Oh, oh!

[Chief Conrad Polson]

I want to thank the committee for inviting us here today. My name is Conrad Polson and I am chief of the Timiskaming First Nation and a member of the Algonquin Nation. Regional Chief Picard could not attend, so he asked me to be here. With me are Claude Picard and Mr. Di Gangi.

We have written a brief that has already been given to you. I will summarize our main comments because I understand the committee wants to focus on questions and answers.

Quebec and Labrador have a unique legal and factual situation. We are in a transition zone between the Royal Proclamation of 1763 and the numbered treaties. There are no historic land surrender treaties, and aboriginal title still exists. Reserves have been set aside in at least five different ways in our region, but not by treaty. Of the landless first nations in Canada, 42% are in Quebec. These five first nations have no reserve lands.

There is an urgent need to reform the specific claims policy. The specific claims policy has never responded fully to our unique legal and factual situation. From an administrative point of view, the current system does not work effectively. The federal government is in a conflict of interest because it is judge and jury. We are encouraged that the current government appears committed to reforming the policy. We are also encouraged that there is all-party support for this effort.

But there are concerns about the process up to this point. The legislation and the political accord were done with the Assembly of First Nations, but the process was secret because of the legislative drafting. Our chiefs first saw the legislation and the political accord at the end of November when they were publicly announced. The timing was not good. There are things being rushed too much, and there seems to be the view that if first nations want to consider the package carefully, somehow they are against it. This is unreasonable.

The AFNQL's role is to provide information and encourage discussions so our members can make informed decisions and give the organization direction. There has not been enough time to carry out legal analysis and get the information to the chiefs and councils to get their comments. It is important for chiefs and councils to consider this package and provide direction on this issue, because the individual first nations are the ones who own these claims and this affects them most directly.

The federal government has a legal duty to consult. This cannot be delegated to another organization. If the government is serious about reforming the specific claims policy, it should be willing to carry out meaningful consultations. This is the best way to build support.

Bill C-30 is an incremental approach to reform. The joint task force recommendations from 1998 called for a completely independent claims process to get rid of the federal conflict of interest once and for all. Bill C-30 removes part of the conflict of interest. It creates a tribunal that can rule on validation and compensation for some claims, but claims will still be with the federal government alone for the first six years. This leaves a lot of room for federal conflict of interest to come into play. The largest claims will be subject to federal conflict of interest. The package is a partial step forward, similar to the incremental reforms that came after Oka in 1990.

We have some specific concerns about parts of Bill C-30. The definitions of what is eligible or ineligible to be a specific claim don't reflect Quebec and Labrador's unique legal and factual situation. Paragraph 14(1)(c) covers claims arising from the crown's provision of reserve lands. It should also cover claims arising from failure to provide reserve lands.

Paragraph 15(1)(f) excludes claims that are based on aboriginal rights or title. This is prejudicial to Quebec and Labrador, since many specific claims in our regions are indirectly connected to title. This is a very important issue for us.

The compensation cap discriminates against first nations that have lost the most by continuing to expose them to the federal conflict of interest. Most specific claims are about land, but the proposed tribunal will not be able to award land.

The bill does not remove the potential for federal-provincial fights over liability for pre-Confederation claims. The federal government should assume responsibility for pre-Confederation breaches.

The Indian Specific Claims Commission has been shut down without finishing its work. The government unilaterally imposed conditions on which claims would be completed by the commission and which files would be shut down. At least two claims from Quebec that were at the commission have been terminated. Now these first nations have no recourse to address their claims, and they are further delayed.

The political accord contains some critical issues that remain unresolved. The assurances in the political accord about reforming the additions to reserve policy are not concrete enough to balance the fact that the tribunal cannot award land. Although the court is supposed to cover things like submission standards for incoming claims, the specific claims branch is already acting unilaterally in trying to impose standards in this area. This is being used to delay the acceptance of incoming claims.

There are so many vague commitments in the accord that it is hard to judge the package as a whole. The accord is not enforceable and is not binding on future governments. Either way, if this package goes ahead, the actions coming out of the political accord need to be more open and less secret. They must actively involve the organizations that are directly involved in the research and development of the specific claims.

None of this will work if enough resources are not allocated. This package is very ambitious and promises to accomplish a lot, but it will cost money. The government says it will set aside $250 million per year for compensation, but there's no commitment for additional human and financial resources either for a specific claims branch or claims research units.

In the past 10 years, actual cutbacks and the effects of inflation have severely reduced capacity within SCB and the CRUs. Improvements cannot come just from increased efficiencies; more money is required to get the system working. There are still concerns about the backlog of claims. There has been a lot of talk about getting rid of the backlog of hundreds of claims, but where is the plan? What concrete measures are in place to address the backlog?

[The Chair, Conservative, Barry Devolin]

Thank you very much.

The first round of questioning will be seven minutes for questions and answers, and that will be followed by a second round of five minutes.

We'll start with Mr. Russell from the Liberal Party.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good afternoon. This certainly is an important matter.

Every time we have witnesses in front of us, we talk about the issue of consultation. At a briefing last week provided by the department, they indicated they believe they have no legal obligation to consult on this particular bill--that's big “C” consultation--arising out of the Supreme Court decision on Haida. They don't believe they have any legal obligation to consult on Bill C-30 because there's no demonstration that it is an infringement upon aboriginal rights and interests or that it causes harm in any way. They also cite the fact that this approach is totally voluntary in the sense that a first nation can choose to enter into this process or they can choose not to.

On those bases, they say they don't have a legal obligation to consult. That doesn't mean to say they won't talk, they won't collaborate, but they don't have a legal duty to consult.

When it comes to this particular bill, I find it very peculiar, because under that rationale they say they have no legal duty to consult on this bill, but they've gone into some kind of collaborative working relationship with AFN. We have other bills before us--the repeal of section 67 and now matrimonial real property--which obviously could have an impact on the rights and interests of first nations, and they've chosen a different path altogether on that.

I want to know what your feeling is on this. Is the department making any sense when they say they don't have a legal duty to consult because it's totally voluntary, that you can either opt into this process or choose not to participate?

[Chief Conrad Polson]

When you say no “legal obligation to consult”, does that mean they're above the law? I'd shoot the question back at you.

[Todd Russell, Liberal, Labrador, NL]

That's not for me to answer, sir. I'm relating what the department is telling us in briefings.

Nobody is above the law, as far as I can see, particularly the government or officials in this particular capacity, but they take the opinion that they do not have the legal duty to consult on this bill because of the reasons I just outlined. What is your opinion on that?

I haven't gone through it all, of course, but you have a consultations protocol that you've given us. What's the sense from your organization on the department's position on the duty to consult?

[Claude Picard, Director of Administration, , Assembly of First Nations of Quebec and Labrador]

Mr. Chairman, ladies and gentlemen, good afternoon. Thank you for welcoming us.

I do not think this is the place to enter into a legal debate, as the member was just saying. He was making a distinction between “Consultation” and “consultation”, however. The only comment I would have for the committee—and you just mentioned it as well—is that I do not know how many times we have found ourselves before a committee like this one to discuss the issue of consultations. Furthermore, I could say the same thing for the provincial legislative assembly as well.

Is it a moral or a legal obligation to consult? I will not enter into that debate, but I would appreciate not being accused again of wanting to be consulted left, right and centre. You referred to the document that we have included, the Consultation Protocol that was inspired by the First Nations of Quebec and Labrador Sustainable Development Strategy. This protocol is as broad in scope as the sustainable development strategy. It therefore covers all issues related to the territory, to culture, etc.

We attempted to set minimal conditions in order to avoid finding ourselves in a situation where our people would ask the chief where this initiative came from, because they were not consulted. We would find ourselves once again, as was the case with the bill we are discussing today, no doubt with... I'm not searching for an explanation either. If there are discussions to be held between first nations, we will hold them with all of the goodwill in the world, because these are issues that concern first nations among themselves above all.

However, everyone should try and make an effort—I believe we made some effort—to avoid certain situations, and so that the chiefs from Quebec and Labrador will not find themselves at a particular meeting being obliged to comment on a document. Once again, the issue is not to determine the circumstances that have resulted in our being here today. Having said that, we could have talked about other bills, some of which will come before this committee, that have the chiefs wondering when it was that they might have commented on those issues and when their counsel and they themselves might have consulted their people on the issue. The word “consultation” is a very broad term. We tried to do our best to clarify our thinking with this document. We are prepared to tackle it again, but I do not know how many times we have sent this consultation document to the governments we are dealing with.

Personally, as a representative of the First Nations of Quebec and Labrador, I think we have done our part of the work required in order to establish the processes of consultation, but we unfortunately find that it is still not enough.

[Todd Russell, Liberal, Labrador, NL]

I appreciate your comments. Certainly you've laid out some very specific critiques of this particular bill and how you see it being improved.

Your brief seems to say that there's not a lot in this bill that would be applicable or helpful because of the unique circumstances that exist in the Quebec-Labrador region. Would that generally be the approach you've outlined here?

[Peter Di Gangi, Technician, Assembly of First Nations of Quebec and Labrador]

Yes. Having taken a look at the bill, there are a number of aspects to it that of course would apply to Quebec. I think what we're trying to say in the brief is that inadvertently the drafters did not consider carefully enough the situation in Quebec to accommodate the uniqueness of the fact situation.

But if I could just get to one of your earlier comments, about the issue of this being voluntary, I find that a curious approach to take. If you look at it collectively, first nations across the country have been stripped of hundreds of millions of dollars worth of assets that are the subject of specific claims, lawful obligations. The specific claims policy is an attempt to try to negotiate these in good faith. The defendant, which is the federal crown, has devised the policy—in this case, the legislation. If first nations don't like it, they're told it's voluntary, but what is the alternative if you want to get justice at last? The alternative is litigation. I suppose if the federal government was prepared to pay for litigation as an alternative to resolving it inside this legislation, that might be something that first nations would be prepared to look at. But to suggest that it's strictly voluntary, I think is a bit unfair, because it really doesn't take into account either the stated purpose of this initiative or the fact situation that is giving rise to these claims.

[Todd Russell, Liberal, Labrador, NL]

Thank you very much.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Russell.

Monsieur Lemay, from the Bloc, for seven minutes.

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

Thank you for coming. I read your brief carefully and I congratulate you on it. I have no reason to doubt your word when you say in your brief: “[...] we were only able to review the bill for the first time late in November 2007”.

You are proposing interesting enough changes that make me want to ask some questions. They will deal specifically with the Quebec situation, given that I am very sensitive to the situation of first nations in Quebec.

In your brief, you say that you would like to amend section 14(1)(c): “To be clear, this provision should read, “provision of or failure to provide reserve land”.” If a first nation was not provided with reserve land, legally speaking it is not a reserve. This bill does not apply to this reserve.

Am I wrong to think that? Is that why you want us to make this amendment? I see that there are five historic first nations who do not have reserve lands. I am willing to consider supporting it, but first of all I need to understand the draft amendment to section 14(1)(c).

[Chief Conrad Polson]

That is a suggestion for the amendment, for sure. As it's stated in the document, there is something that was overlooked.

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

Are claims currently possible under C-30, for the first nations which were not granted reserve lands?

[Peter Di Gangi]

This is one of the questions we had, and that's why we sought the amendment. Our reading of the clause would be that if the crown makes a promise, what they call a unilateral undertaking, there can be a claim based on not honouring that, but it's based on the provision of reserve lands.

In Quebec, we have a situation where the crown may have promised reserve lands, but the reserve lands were never provided. That's where we just want to make sure that those situations would be covered.

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

All right. I understand you perfectly on that point. However, do the five first nations that were promised reserve lands have any documents to that effect? Were they written promises? If that goes back to the reign of Queen Victoria, we have a problem, because she is no longer here.

[Peter Di Gangi]

Thank you.

I cannot speak for the factual situation of each of the five first nations. I'm not familiar with all of their facts, but I know that promises have been made to the communities I've worked with, and they're much more recent than that.

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

The question must be put to those in charge in the department. I promise you that I will remember it because it is very interesting. It is a critical point. It is possible, then, that communities would not have any reserve lands but that they would have been promised them. As a result, they should be included in the bill.

I know that you are very careful and that you have done a very good job. If I have enough time, I would like to move on to section 15(1)(f).

Other than the amendments that are already mentioned in your brief, do you intend to send us any further draft amendments? If so, you have until April 20 to do so. We should complete our deliberations by the 20th or the 25th. Do you have any further draft amendments for bill C-30?

[Chief Conrad Polson]

Yes, definitely. As we stated in our opening remarks, we didn't have time to fully analyze this or even to get a legal analysis. Yes, there will be more amendments when we get directions from the chiefs in Quebec.

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

We have set our schedule and you have until approximately the 20th or the 25th of April to send them to us. I would like to say that to you right now.

Section 15(1) states that: “A first nation may not file with the Tribunal a claim that, [...] (f) is based on, or alleges, aboriginal rights or title; [...]”. That means that you cannot even file a claim. I'm trying to see how I could amend this bill. Could you give me some wording we could use to amend this bill?

You say that It would be safer if paragraph (f) removed the reference to “based on”, or if the exception were qualified with wording such as “claims based solely on aboriginal title”. I have to tell you I do not understand that amendment. Could one of the three of you explain that to me or send me some explanation on the subject later on? The floor is yours.

[The Chair, Conservative, Barry Devolin]

Did you want to make a quick response to that?