Indigenous and Northern Affairs Committee on March 10th, 2008

[Peter Di Gangi]

That would be difficult to do without having the jurisdiction to be able to do so. According to the way this bill is set out, I don't see the tribunal having that kind of authority.

It's a big unanswered question, absolutely.

[The Chair, Conservative, Barry Devolin]

Thank you, Monsieur Lévesque.

That brings our first panel to an end for today. I want to thank our witnesses for being here.

We will suspend for about five minutes so that we can bring the next witness forward.

[The Chair, Conservative, Barry Devolin]

Could I ask committee members to return to their seats, please?

We'll carry on with our second panel for today.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

On a point of order, Mr. Chair, I'd like to wish both you and Mr. Lévesque a great happy birthday.

[Some hon. members]

Hear, hear!

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Bruinooge.

For those viewers at home who don't know what's going on here, Monsieur Lévesque and I both have a birthday today. I was going to say that we're sharing a happy anniversary together, but I wasn't sure how, between the English and the French, that would get altered.

There's a little-known rule in Parliament that if two or more members of a committee have a birthday on the same day, we get a cake. We got this very nice cake, and I want to thank the staff for organizing the birthday cake.

It's really quiet here now, because everyone's mouth is full.

I'd like to reconvene for our second panel today. As I said earlier, our witnesses from the Atlantic Policy Congress of First Nation Chiefs were unable to make it. They're stuck in the snow.

I'm happy to say that Darrell Paul, the executive director of the Union of New Brunswick Indians, managed to find at least one flight that was running to Ottawa today and is here with us.

Mr. Paul, what we'd like to ask you to do is make an opening statement, if you would. That will be followed by a round of questioning from committee members. I anticipate that with the time we have left we'll have enough time for one round of questioning.

Mr. Paul, the floor is yours.

[Darrell Paul, Executive Director, Union of New Brunswick Indians]

Thank you. As I was introduced, my name is Darrell Paul. I'm with the Union of New Brunswick Indians.

First of all, I want to say that it's a pleasure to be here before you to make this presentation on behalf of the aboriginal people of New Brunswick. Let me say up front that we are in favour of this legislation and encourage you to have it passed and adopted into law. It is a significant move forward from the status quo.

There are many positive aspects to this bill. It is an independent tribunal that we've never had before; it can hear claims that go up to $150 million, far more than any previously proposed; it now puts a timeline of three years in which Indian and Northern Affairs Canada must respond to a claim; and AFN and Canada signed a political agreement as a companion piece to this legislation.

As you know, the land claims process only came into being in the early seventies, when I first started working in this area. I have spent the past 30 years being frustrated by a system for settling land claims that just did not get the job done.

I want to give you some idea of just how frustrating the system has been. There are specific claims in Atlantic Canada, and practically every one has taken several years to be accepted by INAC. There are cases where it has taken five, six, and seven years just to have a claim rejected, meaning it's been sitting that many years with Justice deciding whether or not a claim is valid, and in most cases it was rejected.

One of the biggest bottlenecks is that the Department of Justice gives an opinion to INAC on any claim submitted. This has been a problem. For example, several years after a claim has been submitted, there is a legal opinion rejecting our claim. The door is then shut on our claim unless further research indicates otherwise. At this point, it is very difficult to prove a valid claim to INAC unless we take it to the courts, and that would be very expensive to do. This is the result of INAC taking on the role of judge and jury and the final decision resting with them. In other words, we're at their mercy.

The establishment of an Indian Claims Commission has not been much help to us either because a decision made at that level was not a binding one. Should the ICC decide against us on a claim, INAC seemed pleased about it. On the other hand, if the ICC made a decision in our favour, it was ignored because the ICC could only recommend.

The courts are the only recourse we have, and that would be very costly because the bands do not have the financial resources to go to court.

When we apply to have a claim accepted for negotiation, INAC requires us to submit a legal opinion on our claim to them. Then, after they get Justice to give them a legal opinion on our claim, they refuse to share it with us, claiming that it is privileged. If their legal opinion is privileged, then why isn't our legal opinion privileged as well? The requirement that we submit a legal opinion with our claim as a precondition should be disallowed, whether or not the claim may be valid.

The negotiation process has been particularly frustrating. It takes years to try to move these claims forward--10, 15, 18 years. After it has been accepted, some claims have been in the system for 15 to 25 years and are still not resolved. If we are dealing with a claim that has been rejected and we have had to gather further evidence and do even more research, it adds even more years to the protracted process.

This act, Bill C-30, now before Parliament, is the latest attempt to resolve the specific claims problems that face us. I believe it is the best attempt so far.

The AFN has worked hard on our behalf to get the legislation. It has dialogued with first nations and first nations organizations to ensure that what goes forward is generally acceptable to most of our people, and it is. There are several reasons why it is better than anything we have had before.

This is a legislated approach, which, so far, is a better approach than the policy that existed before. It is not necessarily perfect; however, it provides for a truly independent third party to deal with our specific land claims. Despite this, we have some suggested improvements to put forward. There are five suggestions I want to put forward concerning this tribunal, which may help to improve what is being set up here.

First, there needs to be an overall policy approach that makes the process less intimidating and as informal as possible. Right now the tribunal will be mandated to look like and operate like a superior court of law. As I said earlier, that is good, but if there were provision for the tribunal to have a group of elders from across the country—call them an advisory council of elders—one of them could sit with the judge to hear the case and advise him during the hearing. Then, as a decision is being made, it should make it easier on any aboriginal people participating, such as community elders who are there to give evidence. There is already a provision for an advisory council to advise the tribunal on the drawing up of the rules and procedures. There should be a provision to have aboriginal representation on that advisory council as well.

Second, the bill provides for an appeal by any party, but the appeal must go to the Federal Court of Appeal, and presumably it may go further on leave to appeal to the Supreme Court of Canada. Although that specific provision is not mentioned in the legislation, maybe it should be, to ensure that the Supreme Court of Canada has jurisdiction to hear such a case. The Federal Court has a trial division and an appeal division. The National Parole Board has a trial level of hearing and an appeal level. I believe the Tax Court of Canada has trial and appeal levels. There is no reason this tribunal could not also have an appeal level built into it, so that the first level of appeal would be internal and made up of three judges and come before the Federal Court of Appeal and a more formal judicial process. Such a provision would make for a quicker, more informal, and less intimidating appeal process, which could also benefit from the advice of elders, who should advise the appeal judges.

Third is the issue of cost. The court has the right to order the crown to pay the cost of bringing a matter to court, and has done so in the past in order to ensure a more level playing field, especially in regard to some aboriginal cases. This legislation should provide that the crown automatically pay all costs for the parties before it, rather than awarding costs to one or other of the parties after the fact. There are provisions to ensure that frivolous matters will not go to the tribunal. If there is a dispute as to what is covered by costs or the amount of the costs, that can be argued before the tribunal and settled by the tribunal.

Fourth is the issue of the jurisdiction of the tribunal. At present it seems to be limited to issues dealing with land or assets, and aboriginal and treaty rights are excluded. This is going to be a problem. For example, we have had the right in New Brunswick to harvest wood on crown land for personal use. Now if we are denied this treaty right in some way, we can only go to the regular court of redress, or if there is a dispute as to what is an aboriginal right and how that right can be exercised, again we must go to the court. Going to court is just too expensive, and most bands cannot afford to do it; therefore justice is denied us.

This problem also applies to landless bands such as the Passamaquoddy of New Brunswick, who are not only landless but are also unrecognized in Canada. Here is a group of aboriginal people living in Canada who are recognized as status Indians in the United States of America, and their people have reserves in the U.S.A., but they live and work in Canada and are not recognized here and therefore have no land here, even though they have claims to land here in Canada.

They have the right to have their status recognized by Canada and the right to fight for land based on their traditional lands, because they are signatories to our treaties.

If you feel this matter of dealing with issues that are not provided for in the mandate of the tribunal is too complex to make an amendment to the legislation right now, then add a provision to have a committee study it over the next year or two and come back with recommendations within a certain timeframe.

Fifth, there needs to be an adequate and meaningful follow-up on the commitments contained in the political accord, such as a clear, workable, timely, and funded process. This must include a meaningful process for dealing with claims over $150 million and must ensure that there's proper and complete funding. In particular, there needs to be funding provided for those first nations that need to carry out research for negotiations on a specific claim.

In conclusion, we certainly appreciate the opportunity to make this presentation to you. We recommend the passing of this legislation and hope you will give serious consideration to our suggestions.

We are prepared now to answer any questions you may have.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Paul.

We will have time for one round of questioning, with seven minutes for each. We will begin with the Liberal Party and Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Good afternoon, sir, and welcome.

I certainly enjoyed your presentation. It was very practically oriented, outlining some of the strengths of the legislation, some of its weaknesses, and also recommendations about where it can be enhanced.

Your views are not always consistent with those of some of your brothers and sisters across the country, and that's part of what we will have to wrestle with as a committee as we go forward with this particular piece of legislation.

I want to come back to a couple of issues you raised. I heard your frustration with the current claims process. I would suppose it's partly with some specific claims and also with comprehensive claims—I believe there are some comprehensive claims being looked at in New Brunswick as well? I certainly have heard this from you.

You said the Department of Justice was often an impediment, in terms of the advice they have given to Indian Affairs. I would only say that I don't think that's going to be different under this particular piece of legislation. Justice will have a significant impact, I believe, on whether they suggest a claim will be accepted for negotiation by the Minister of Indian Affairs. I don't believe that sort of balance or that collaborative approach between Justice and Indian Affairs will change under this.

Indian Affairs has up to three years to accept a claim for negotiation, once you present it, and then another three years to negotiate it, or maybe you can agree to go to a tribunal. I don't believe Justice is necessarily taken out of the equation here just because we have this piece of legislation; I doubt it very much. So we have all this upfront stuff--Justice, Indian Affairs for three years, negotiations for three years.

Have you any indication what the plans are to make sure the first part of the process is well funded, well resourced, that there will be changes in the system existing right now that will facilitate the potentially six first years of assessment and negotiation? Has any of that been indicated to you?

The minister has been very vague on what is being done internally to accommodate this particular piece of legislation if it is approved. Have you people any idea what might be happening?

[Darrell Paul]

We don't. I guess how it's going to be funded is something that needs to discussed, and any decision to fund these processes will probably be up for discussion—and consultation, if you want to add that.

I haven't heard anything along that line, but I would think the government, Indian Affairs, would provide funding to carry out this type of work, because we can't afford to do it. We don't have the funding; it's not there. It's no good to have the legislation in place to accommodate these claims if there's no funding to go along with it; then the legislation is useless.

[Todd Russell, Liberal, Labrador, NL]

That's exactly what I was getting at. I'm talking about this both from an INAC-Justice perspective and from the first nations' perspective.

The other issue, about the possibility of—well, under this legislation there is really no appeal; once a single judge makes a decision, everybody is bound by that particular decision. Some of the information we've received says that's consistent with superior court judge rulings and that type of thing.

How vital is an appeal process to you?

[Darrell Paul]

As with any other decision, whether it's on land claims or on a point of law concerning business or on anything else that is facing the legal or justice system in the courts, there should be an appeal process. If one person, one judge makes a decision and cuts it off and that's it, you can't open it any more, that's not being fair.

As I mentioned in my presentation, there are other courts that have the appeal process built in. It's there for the benefit of those who are not happy with a decision.

Of course, mind you, we've been happy for the last 500 years with a lot of the decisions, so a matter of maybe two or three or six years isn't going to matter a whole lot.

I think it would be unfair, and the playing field would not be a level one, if the process were to go in such a way that when the judge makes a decision, that's it, you have no other recourse. I think it's unfair to us, and I'm sure you would get the same type of answer from most, if not all, of my colleagues that a process wherein we cannot make an appeal because we're not happy, for good reason, with the decision that comes down is not a fair one.

[Todd Russell, Liberal, Labrador, NL]

Concerning the Passamaquoddy—I don't know a lot about that particular people—what you're saying is that this legislation would have no applicability for them whatsoever.

[Darrell Paul]

That's exactly right, because they're not recognized as status Indians in Canada.

I'm not sure what happened, but I know that many years ago the Passamaquoddy lived in New Brunswick. A lot of them have moved into the neighbouring state of Maine. At the time when aboriginal people were given status, band numbers, they weren't around. That happened in 1951, when a list of people was compiled by the department. I think it gave people an opportunity of six months to agree whether individuals were Indians or not. After that time period went by, if there was nobody for or against, then whoever was on the list got to be status Indians. But in the case of the Passamaquoddy, they weren't in the area when all this was going on.

If I might add to what I said when I made my presentation, those people are signatories to the treaties, which are, as you know, valid and binding treaties—the Supreme Court said so—and those people should and must be recognized as status Indians.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Russell and Mr. Paul.

Monsieur Lemay, s'il vous plaît.

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

Thank you Mr. Paul, for having braved the storm. Your comments are well chosen, but I have a problem that I would like to share with you. Through the process set out in Bill C-30, we sought to curtail court proceedings. That is why we asked that the decisions be final and not subject to appeal, except in the case where the judge makes a serious error, as stipulated in section 28 of the Federal Courts Act.

I find your position problematic, because you want to ask both the Federal Court and the Supreme Court for the right to appeal. With all due respect, I do not trust the government. If a right to appeal is granted, that means that the government can also appeal a ruling. You are not the only potential claimants. God knows that the federal government has the means to appeal to the Federal Court and the Supreme Court, and that a specific claim can go on for 15 or 20 years. That is why I am asking you to show me why these rulings should not be final and why they should be subject to appeal. That would mean that a case could go to Federal Court and then on to the Supreme Court.

What is your request based on? Do you maintain that the right to appeal to higher courts is absolutely necessary?

[Darrell Paul]

Going back to specific claims we've been dealing with, as I mentioned earlier, INAC and Justice have always acted as the judge and jury in a lot of these claims. We've waited as long as seven years--eight years in one case I know--just to give an opinion, and that was a negative one. I don't know whether Justice was that busy that they couldn't give an opinion on a matter within a reasonable time. Six or eight years is not a reasonable time. When that decision was made by Justice, Indian Affairs took that as being written in stone; you can't change it.

I would like to see an appeal period added to this legislation. Again, the reason is that judges can be wrong. They're human. Just like all of us around the table, they make mistakes. They're not perfect. It has been proven over time that they've been wrong in making decisions. I don't see this matter any differently than any other court, whether it's the federal, provincial, or Supreme Court. The Supreme Court is the highest you can go, that's true. When the Supreme Court makes a decision, that's it, whether I'm on the receiving end or somebody else is on the other end. In any court, somebody has to win and somebody has to lose.

I think we're prepared to take these matters as high as possible. I know it's going to cost a lot of money. But in some cases maybe things can be negotiated without going to a higher level; everybody negotiates and everybody is happy.

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

I have trouble agreeing with you, and I'll tell you why. If a ruling worth $10 or $15 million is handed down in your favour, and the government decides, for financial reasons, to appeal this ruling, that will delay everything. However you know that you are right.

I don't know about you, but I see Bill C-30 more as a reconciliation process than as an adversarial process or a fight in court. In my opinion, it bodes well for reconciliation. I don't know if you agree. It should be stated that the government must be ready to go to court and that you must be ready too. Both parties must be accompanied by mediation specialists, or else it will go on for another 10 years. That's why there are currently 788 unsettled claims.

I am not prompting you to revisit your position, but perhaps you should analyze it again. In your opinion, does Bill C-30 represent a reconciliation process, or an adversarial process?

[Darrell Paul]

Well, it can be both, I guess, depending on how you look at it. Again, I have to go back to my original response, that I don't think that's the proper way to look at it, in my view. If we lose a decision by the tribunal, then I think we should have extended the courtesy to appeal that decision. Mind you, it can go the other way as well. I think if you go to court, that's a chance people take. Some people take a big chance; for others, the chances are not as great. So regardless of what it is or what case you bring before the courts, I think it's only fair that an appeal process should be there.

Now, mind you, in this legislation we're not expecting the court to decide for every claim we bring before it. And it's not going to happen. Nothing turns out 100%. So this is the way I look at it. Even though the possibility is there that if it's ruled in our favour and the government decides to appeal it and wins its appeal, well, that's a chance we all take.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Paul.

Ms. Crowder, for seven minutes.

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

Thanks, Mr. Chair.

Thanks, Mr. Paul, for coming before the committee today. I appreciate your thoughtful presentation.

I have a couple of questions for you.

Unfortunately, just because timelines are outlined and legislation doesn't necessarily mean governments of any political stripe actually meet those timelines, there really aren't any consequences for failure to meet the timelines. This has come up a number of times, and I wonder if you would comment on it.

We know there are a significant number of claims already in the system. When it comes to the bill being passed, the clock essentially is going to be reset to zero for the claims that are in the system. I just fail to see how the system is going to deal with the 800, 900, or 1,200 claims, depending on whose numbers you want to use, that are currently there in the system. I just can't see our meeting that six-year timeframe--three years to negotiate and then an additional three years to get it to the tribunal. I just don't know how that's going to be accomplished.

The answers the minister has provided are very vague: a recognition that some additional resources are required, but no real commitment to them; a recognition that some of these claims will be able to be grouped, but no analysis of the numbers and the resources that are required; no analysis of the resources that will come to first nations to help them out with their research; and no analysis of what's going to be required for first nations that are required to resubmit. I agree there are some positive good steps in this legislation, but I just don't see legislation, in and of itself, clearing the backlog.

I wonder if you would comment on that.

[Darrell Paul]

Well, I agree with you. I can't see in that short time how all these things can be addressed. As I pointed out earlier, this has been building up over time. Claims have been neglected. Just as an example, we have some claims in the system that we're waiting for Justice to give an opinion on, which I don't think is fair. I don't think it's right. I think the time that's been spent on these claims has been very little as far as Justice is concerned. And then after five, six, seven, eight years, that claim is rejected because of something ridiculous that doesn't even make sense. These are the frustrations we face.

I will get back to your question about how the timelines in this legislation are going to address all these outstanding claims. We estimated that on the claims that are in the system now, under the present system, it would take something like 500 or 600 years to solve them all. Well, as crazy as it might sound, that's reality. And they've only been settling something to the tune of maybe...I remember for some cases they might have settled a dozen in a year. Then there are more claims going into the system.

So you're right. I agree there's no way to address all of those outstanding claims in such a short period of time.

On turning the clock back to zero, if by turning the clock back to zero you mean that all these claims are going to be forgotten or are going to be just shoved aside and they're not going to be considered any more--

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

They're going to be in the line-up again, once the legislation has passed. So you can have claims that have been around for 15 years, as you rightly pointed out, that will basically get set back to zero.

[Darrell Paul]

Yes, that's true. I have to agree. I don't know how they're going to resolve those outstanding claims in the timeframe in the legislation.

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

Could I ask you a really quick question about your notion of having the elders involved?

When I looked at the political accord, there was a joint submission to the advisory committee of the tribunal in respect of the tribunal rules. There's going to be an advisory committee to the tribunal in terms of selection and rules and whatnot. So my understanding of what you're saying is that you would actually see a much broader role for an elder to sit with a judge throughout the process.