Indigenous and Northern Affairs Committee on March 10th, 2008

[Peter Di Gangi]

I could make a quick response. Thank you.

Again, it's a very technical issue relating to the factual situation in Quebec. As we know, the federal government has what it calls the comprehensive claims policy for dealing with ancestral rights or aboriginal rights, and then it has the specific claims policy for dealing with other kinds of claims, and it doesn't like to mix them up. I think the drafters wanted to exclude claims based on aboriginal rights or title because they didn't want to mix up these two policies.

The problem is that this doesn't account for the unique circumstance in Quebec, where you may have legislation that creates a lawful obligation and there might be a specific claim based on that, but because that legislation may be reflecting aboriginal rights, it might be grounds for excluding it under the proposed draft.

That's why we were suggesting that we understand why the federal government might be concerned about that, but that there is a way to accommodate the unique circumstances of Quebec first nations without compromising the comprehensive claims policy.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

Ms. Crowder, from the NDP, for seven minutes, please.

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

Thanks, Mr. Chair, and thank you for coming before the committee today.

I think there were a couple of points in your presentation that I found a bit troubling. I just want to make a quick comment about consultation. Every time we have a piece of legislation before this committee, the issue of consultation is raised, as Mr. Russell points out.

I would argue—and this is not a partisan remark, because there have been successive governments that have failed to work with first nations to develop a consultation policy—that there seems to be a fundamental philosophical difference around lack of recognition of nation-to-nation status, as I've said before. I would argue, and I think many of the witnesses have argued, that appearing before a committee does not constitute consultation. What happened with the Assembly of First Nations was an effort to get input, but in no way can it be deemed to be consultation, and the federal government, as you pointed out, cannot delegate its duty to consult. We don't have the terms of reference, but my understanding is that the Assembly of First Nations was asked to facilitate a dialogue, which hardly constitutes consultation. I just wanted to make that comment.

I want to come back to your comment about the fact that some first nations have had their specific claims process shut down. We've heard this from other nations as well. When I go back to the transitional clause that's in the legislation, my understanding of it is that there was going to be a period of time for claims in transition. I'm surprised that we're already hearing of nations that have had their claims rejected or not considered for negotiation when there have been no guidelines set out and the bill hasn't even come into effect.

When he came to the committee, we raised with the minister the issue of how backlogs were going to be dealt with. Now, if one of the ways for dealing with backlogs is to reject claims at the outset and to tell first nations that they have to resubmit their claims once the bill is passed, that hardly seems like a fair and reasonable way to deal with backlogs. When the minister replied to the committee on the issue of dealing with the backlogs—because, depending on whose numbers you use, there are 800 or 900 or 1,200 specific claims in the system—he mentioned that 50% of those claims were small claims. We've heard some different points of view on that.

In your view, what needs to be in place to deal with the substantial backlog? If we're just going to have people get back into the line-up, they're going to face an additional three to six years before they're even going to be considered. So what, in your view, has to be done to deal with the backlog?

[Chief Conrad Polson]

Well, for one thing, as the Quebec region, we would like to sit down and study this bill and definitely look for more solutions and find out how we can make changes to deal with that backlog. But we haven't had the time to work with this document. As I mentioned earlier, we didn't even have a chance to have a proper legal analysis of it or to have it studied. We came here with our documents based on the work we've been doing in the last couple of months. But until we sit down to really look at what can be proposed or amended or suggested, I can't even answer that one today.

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

I guess part of the concern that we've heard expressed, which I certainly share, is that we have nations who have been in the system for 10 or 15 years, or whatever, and to have to face another possible delay of more than six years doesn't seem fair or reasonable.

The minister in his response has made some big references to the government taking measures to ensure necessary resources will be in place, but there is no commitment to resources, there is no commitment to timelines, there's no commitment to the amount of resources, and there's no commitment to providing support to the first nations in terms of the resources they need. So I have to admit that I don't have a great degree of comfort in using this as a mechanism to reduce a backlog.

[Chief Conrad Polson]

That's definitely a concern at my community level, because we did have a claim that was sent back to us; this bill is not even in effect yet or not even law, but our claim was sent back to us. It seems that in other parts of the country they're settling claims that were submitted under the same criteria we submitted ours, but ours was returned and others are being settled.

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

We recently had a case in B.C. where a claim was turned back as well.

How much time do I still have? Two minutes? Great.

I just want a quick comment on the political accord. I agree with your comments that the problem with the political accord is that there is no commitment for future governments to honour the accord. We've seen histories of that already, where political accords were not honoured by governments that were elected.

What would you like to see with the political accord? Would you like to see it entrenched in legislation?

[Chief Conrad Polson]

First of all, as we mentioned, we were very encouraged to see that all parties support finding solutions to this file. I guess what we need to see is sincerity in really dealing with this issue. It's been ongoing for many years. Can it be added into the political accord? Is it going to be binding? There has to be a serious commitment from all parties.

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

The problem with political accords is that they really rely on subsequent governments to honour them, because they're not binding. We saw that with the political accord signed in 2005 that led to Kelowna. We saw that with the political accord on the residential schools settlement and the apologies.

This may have been written in good faith, but there's no guarantee that future governments will actually continue to see it through. So that's a problem.

[Chief Conrad Polson]

Yes.

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

Okay.

Really quickly, in the case of the files you talked about that have already received letters rejecting them, were they given any recourse, or were they just told to wait until the outcome of this bill?

[Chief Conrad Polson]

That's basically what it was.

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

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you.

The last person in the first round, from the Conservative Party, is Mr. Bruinooge. You have seven minutes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I appreciate all the witnesses who've come before us today. Clearly, you've brought a lot of good testimony to our committee, and I'm very excited to take your recommendations as we continue with the work we're doing. As everyone knows, this is a very important bill.

In the previous rendition of the way the Government of Canada dealt with specific claims, many argued that we were in fact the judge and jury and final arbiter of all things that had to do with specific claims. So there was a massive call for us to remove that conflict of interest, and thankfully, our government has proceeded with this bill. After what has turned out to be quite a fruitful consultation with the national chief and the Assembly of First Nations, we have a bill before us today.

Some testimony has indicated that there could be improvements to all bills before this House, so I'm glad to hear that you've brought forward a number of recommendations. I'm especially pleased to read in your conclusions that Bill C-30 represents a significant and important improvement over Bill C-6, which was introduced by the previous Liberal government. We believe that the modifications suggested, with further clarification, will help it become further strengthened. I'm also glad that you're suggesting to this committee that it continue its all-party support of the initiative so that we do not lose this opportunity, as you've written in your conclusion. We clearly have a lot of common ground, and I appreciate the testimony you've provided so far.

One area, though, on which I would like to continue the discussion is in the section on page 4 of your brief on the provision of reserved lands. It is in relation to paragraph 14(1)(c). You talk about how the provision of reserve lands, including unilateral undertakings, might not account for or properly deal with specific first nations that don't currently have reserve land but were perhaps promised reserve land at previous times in history.

This is the current language within the bill, which we've already talked about:

a breach of a legal obligation arising from the Crown’s provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation

In defence of the drafting, it is felt by the government that those situations you've referred to would be covered under this particular section. So if you could give me more testimony as to why you don't think that's the case, that would be appreciated.

[Peter Di Gangi]

There are a couple of reasons why we thought it would be important to be a bit more precise and explicit in the legislation. One is that this is legislation, and once it is adopted it is very hard to turn the clock back or to amend it. It's probably a good idea to try to get it as right as possible.

The other thing to keep in mind is that although we certainly do appreciate this government's and the all-party commitment to this bill in resolving these issues, once you get into negotiations, the federal government will try to do its best to minimize its obligations and try to reject where possible. It's not all fuzzy, warm stuff. So it's important to make sure that if there are concerns about how the legislation may be interpreted, those concerns are addressed so that all the possibilities are taken into account.

Our feeling was that there may be a chance, with the wording as it is, to say, “Well, since your community never was provided with reserve lands, you can't avail yourself of this legislation.” We thought a way of addressing that would be to say, “either for the provision or the non-provision of reserve lands”--just to be safe and to take things into account.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay.

Moving on to an area that has come up in other situations, from other witnesses in other testimony that we've received, in relation to the cap of $150 million, I see in your brief you mention that there may be as many as four specific claims in your province that could be over $150 million. One argument that I've presented to other witnesses to consider was that when all of the smaller claims were removed from the system, taken out of the system and put into an independent hand, the Government of Canada would have a much greater opportunity to focus with the senior decision-makers on the specific claims that are of that magnitude--above $150 million. As such, not only will there be efficiency brought to the smaller claims--the $5 million, $10 million, and $20 million ones--but the larger ones will then also be freed up from the massive backlog and be put in front of the decision-makers.

Would you concur with that logic? Do you see that as being a good argument?

[Chief Conrad Polson]

How many years are you looking at to clear up the backlog on small specific claims? If we say there are 800 that are below $150 million and there are 100 above, how many years will it be before you get to the other 100 claims? It might take us maybe another century, I don't know.

That's where there is an issue with that cap. There has to be some parallel system set up for the claims above $150 million.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

In theory, they would be able to operate in a parallel way. The smaller claims would go into the new body, the tribunal, which would be independent, and then the government of the day would be able to negotiate the larger claims as they arise.

[Chief Conrad Polson]

Maybe I misunderstood something there, but what you're saying is the $250 million a year will settle the small ones. How long will that take for the 800 or so claims? Then the other 100, as I said, will have to wait until those are settled. There has to be a system to clear up the ones that are above $150 million at the same time.

I don't know if I'm explaining it right.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I hear what you're saying. There has to be a will to settle those claims. There's no question about that.

[Chief Conrad Polson]

Exactly, and in a timely manner.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thanks.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Bruinooge.

We're now starting the second round. This is a five-minute round.

The first questioner, from the Liberal caucus, is Mr. St. Denis.

[Brent St. Denis, Liberal, Algoma—Manitoulin—Kapuskasing, ON]

Thank you, Mr. Chair.

Thank you, Chief, for being here with your delegation.

I have a northern Ontario riding with a very large number of first nations, so I really appreciate your testimony today.

I notice you made reference to the addition to reserve, or, as it's sometimes known, return to reserve lands. I know it's not in the bill, but when the government made its press release on this bill, they mentioned that work was to commence on the return to reserves. Actually, you mentioned in your brief that there are no concrete details.

Since the writing of this presentation, have you had any indication at all on the addition to reserves piece that is to follow?

I know I have a couple of first nations for whom this is very important—it's at the bottom of page 7 of your presentation. I'm thinking of Mississaugi First Nation, between Sudbury and the Soo.

If you don't have anything to add to your comments here, that's fine. No? Okay.

Well, it's a very important piece, and the government did mention that it would follow this up with first nations in future consultations.

I'll move to the issue of resources. First nations don't usually have extra money around to do the research to support their claims, and the first nations are using limited resources to do detailed historical research that is often beyond their ability. I know in the case of Wikwemikong Unceded Indian Reserve on Manitoulin Island, they've been dealing with a couple of claims for a long time.

Do you feel some comfort, any comfort, that going forward under the new regime you will have access to the resources you need to properly present and support your cases?