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.