Indigenous and Northern Affairs Committee on March 12th, 2008

[The Chair, Conservative, Barry Devolin]

Order, please.

Welcome to the 19th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. We will be continuing today with our hearings regarding Bill C-30, An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts.

We have been hearing from umbrella organizations and groups from provinces and regions across the country. We have come to the final meeting in this round. We will hear today from folks from Alberta and from the Territories.

I have a couple of quick housekeeping items for committee members. We will have bells today at 5:15, so our meeting will be about 15 minutes short of our normal time. I would suggest that we get going now. I could--or I will--bring panel A to a conclusion at 4:25, we can suspend briefly, and we can be back with our second panel by 4:30, finishing by 5:15.

Monsieur Lemay, did you have something to say?

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

Mr. Chair, I will have some questions for the witnesses. But, as we have to meet representatives from the Yukon, instead of interrupting the session, the chief and the people accompanying him could join the panel. That would avoid the need to interrupt the session and we could sit until 5:15 p.m. We could find room for them.

It always takes five or ten minutes before the session gets going again. We could simply ask the first witnesses to make room for their colleagues from the Yukon when they arrive.

[The Chair, Conservative, Barry Devolin]

That's an interesting point. I don't think the people from the Yukon are here yet, but maybe that's something to consider in the future, particularly when we have relatively small delegations, as we do today.

But I don't see the Yukon folks here yet, and--

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

They are scheduled to appear at 4:30 p.m. So they should be here by about 4:15 p.m. We could ask them to join us right away rather than interrupt the session. That is what I respectfully suggest to you.

[The Chair, Conservative, Barry Devolin]

Well, let's get started. I think you've made a good general point. The other way to do this--really quickly--is that when we suspend, committee members can just sit tight in their seats until we get the second panellists. Usually it's the committee members going for refreshments that slows us down.

At any rate, I'd like to welcome, in the order they are listed here, the four representatives from Alberta: Jim Big Plume, director; Ron Lameman, chief executive officer from the confederation of Treaty No. 6; Ron Maurice, legal counsel from the Tsuu T’ina Nation; and Grand Chief Stanley Lagrelle.

Welcome. As I said to you before the committee meeting started, typically we have a delegation make a 10-minute presentation, followed by questions and answers from the members. If more than one of you would like speak, and you go over that 10 minutes, a little bit is okay; after that it starts to cut into the questioning period.

Who would like to begin?

[Jim Big Plume, Director, Tsuu T'ina Nation Land Claims, Alberta First Nations Treaty 6, 7 and 8]

I'll begin today. Thank you, Mr. Chairman.

My name is Jim Big Plume. I am the research director for land claims for Tsuu T'ina First Nation. Just as a matter of internal housekeeping for ourselves, Tsuu T'ina Nation is located across the street from the city of Calgary, literally.

On the presentation that was forwarded to your offices, I'm going to assume some of the committee members have had time to look over the document and therefore would allow us to try to expedite this exercise as quickly as possible in our presentation. I recognize your time is limited, and we will do what we can to respect that.

I would like to start with a quote of Lord Denning on the aboriginal and treaty rights of first nations in R. v. Secretary of State for Foreign and Commonwealth Affairs. The quote reads:

...their rights and freedoms have been guaranteed to them by the Crown.... No parliament should do anything to lessen the worth of these guarantees. They should be honoured by the Crown in respect of Canada so long as the sun rises and the rivers flow. That promise must never be broken.

The chiefs of Treaties 6, 7, and 8 of Alberta appreciate the opportunity to express our views on Canada's proposed legislation to establish a Specific Claims Tribunal. The intended purpose of the new legislation, as far as our understanding is concerned, is to expedite the fair and just resolution of first nations' outstanding specific claims against the crown.

When the first nations of the treaty areas of Alberta entered into treaty with the crown in the late 19th century, these discussions proceeded on a nation-to-nation basis and the treaty relationship was founded on trust and mutual respect. However, it was not long after the ink dried on the treaties that the crown began to betray our trust by violating the treaties and denying us our lands and resources. This breach of trust and betrayal still resonates among our people today, and it makes it difficult for us to move forward until the grievances of the past are addressed and adequate reparations are made in the interests of justice.

This bill is important to first nations because it represents an opportunity for the Government of Canada to create a process that is fair, just, and expeditious in the settlement of our claims. Many, if not all, first nations that are signatories to the various treaties can attest to the widely held frustration with the current specific claims process. Since the time the treaties were made, many first nations were under consistent pressure and coercion to surrender and sell their lands and territories so that those lands and territories could be opened up for settlement and developed by non-indigenous people.

As a result, the crown violated the terms of the treaty and breached its fiduciary duties to protect the lands, territories, and resources of the first nations. Thus, the honour of the crown has not been maintained with respect to the implementation of the treaties. This is only one example of the types of historical grievances that have been asserted by first nations under the current specific claims policy.

Under the current claims policy, first nations are frustrated because only a small number of claims have been fulfilled. As well, this has affected the management of the first nations funds, lands, resources, and other assets. After a first nations submits a claim to the specific claims process, the first nation has to wait a number of years for the claim to be researched, for a legal review to be completed, in order that it may be accepted for negotiation, despite comprehensive and extensive submissions by the first nation. As a result, many of these claims remain outstanding and bogged down in the current process. This is a graphic illustration of the problems inherent to the current specific claims policy and process.

The current process is patently unfair. Years of delay in the resolution of claims is unacceptable. During these years there's little, if anything, that first nations can do to speed up the process. First, a first nation must show all of our cards and disclose our entire case in an effort to satisfy the Department of Justice. The Department of Justice reviews the claim, and this person is in an inherent conflict of interest because he or she sits as judge, jury, and defendant on the validity of claims made against the crown. It is hardly surprising that when a claim is rejected a first nation will reject the Department of Justice's legal opinion, because it is based on one party's narrow and partisan view of the law and facts.

In the end, first nations are left with the task of having to wait indefinitely to determine if the crown will accept their claims for negotiation or if they have to go to court. Waiting for a response to first nations' claims could take many years. During the interim, we continue to lose our elders with each passing day. It is tragic that many of our elders will never see the day when our history is vindicated and justice is done for the crown's breaches of obligations to our ancestors. This real sense of grievance and injustice is compounded by the fact that we have lost important evidence and aspects of our oral history and traditions, which set out the first nations' accounting of how we lost our lands.

Although the backlog of claims continues to grow, the crown has not allocated necessary financial and human resources to address it. To its credit, the Harper government and former Minister of Indian Affairs Jim Prentice did not seek to continue the existing flawed process. Instead, the government heard the concerns expressed by many first nations across the country. It agreed to undertake a further review of the claims process and returned to the table with representatives from the AFN to address some of the major shortcomings of Bill C-6, which was passed by Parliament but never proclaimed as law.

As a side note to all of this, Tsuu T'ina First Nation was one of the tribes that made a presentation of our concerns with Bill C-6 to the Senate committee.

It is against this backdrop that Prime Minister Harper and the Conservative government have introduced new legislation to establish the Specifics Claims Tribunal and to make improvements in the process to expedite the just resolution of our claims.

With that introduction, the chiefs of Treaties 6, 7, and 8 offer the following brief comments, concerns, and proposed recommendations for amendments to Bill C-30. This is not an exhaustive summary, but it reflects the most important issues of concern from the respective treaty areas of Alberta.

We have serious concerns with particular aspects of the legislation, and we want those concerns to be addressed. We acknowledge that Bill C-30 represents a substantial improvement over the current process and past efforts at amendments such as Bill C-6. We therefore offer our general support for Bill C-30.

In our first discussions with the chiefs of Treaties 6, 7, and 8, the most glaring issue brought forward was the issue of consultation, or I should say “improper consultation”. We recognize that at certain points in our lives time does not permit people to represent their concerns. But for the tribes of Treaties 6, 7, and 8, the most pressing concern is the hasty introduction of this legislation. Canada has not provided sufficient opportunity to engage in consultation with first nations to seek their input and address specific concerns they might have with the proposed legislation before it is enacted.

In December 2007, this concern was brought forward to the group in front of you today. Although information was being passed back and forth since the summer of 2007, there was not a lot of information brought forward to the chief. As legal counsels and technicians, we need to provide our chief and councils with a more comprehensive review of what was being processed or promoted in Parliament.

There are legal and moral obligations on the part of the crown to ensure proper consultation. These obligations arise not only from domestic law but also from international normative instruments, some of which Canada is signatory to and others that Canada played an active role in drafting.

Mr. Chairman, at this point I would like to pass the floor to my friend, legal counsel Ron Maurice, who will provide us with the remainder of the presentation.

[The Chair, Conservative, Barry Devolin]

Mr. Maurice, we're just a little over 10 minutes now, but please make your presentation.

[Ron Maurice, Legal Counsel, Tsuu T'ina Nation, Alberta First Nations Treaty 6, 7 and 8]

Thank you.

Jim referred to me as “my friend”. It sounds like we're in court.

I want to preface my comments by saying that I have been a student of process, this process in particular, for about 17 years. Prior to going into private practice in Calgary, I was with the Indian Commission of Ontario as a facilitator on land claims negotiations between the governments of Canada, the province, and first nations. After that I was involved in some 66 public inquiries with the Indian Claims Commission as their senior counsel. I've seen these types of claims both from a substantive point of view and from a procedural standpoint, and I have had the advantage of seeing what does and doesn't work.

The one thing I want to emphasize is that while there are some criticisms of the bill, I think the overwhelming feeling is that this bill, on the whole, is a very good thing. This will lead to some very positive results. It should expedite the fair and just resolution of these long-outstanding land claims. There is certainly room for improvement, and we would encourage the government to consider the recommendations we made in this document with that in mind.

I want to cover a couple of the key points.

I really do feel there is a sense of urgency in seeing that this legislation passes. There have been many emanations of the bill, going back to the 1960s, that have fallen by the wayside as a result of changes in government and the like. I would hate to see that happen again, so we are stressing the importance of pressing forward and moving this along. Again, it's not a perfect bill, but it provides a very solid foundation for the resolution of these claims.

The key positive aspects start with the fundamental principle that you have established an independent tribunal with the binding decision-making ability to resolve issues and disputes over the liability of the crown as well as compensation issues. I think that's extremely important, because it will provide access to justice for first nations where negotiations aren't working very well. I think that works very well for both parties in the sense that it provides some rigour for the process. It provides the opportunity for a more informed assessment of each other's risks and the ability to use that as a driver for a good faith settlement negotiation. I think that's important. Where's there's real risk, there's an informed decision-making process on both sides of the table.

The other key aspect is the ability to award up to $150 million per claim, which will allow the vast majority of specific claims to be resolved under this process. If that's coupled with a separate political accord, where the government is serious and committed to the resolution of those much larger claims, then I think we have the makings for a good process.

The other part, of course, is the timeframe for a response and the opportunity to take a look at how it's working and to improve upon it as we go forward.

With respect to the areas for improvement, I would highlight--and I'll be very quick, so we can permit some questions--that the bill provides for claims to be dealt with on their merits. I think it's extremely important that the legislation expressly recognizes that limitation statutes and technical defences would not apply to the claims that fall within the mandate of the tribunal. I think that's an excellent principle. It allows for these claims to be dealt with on their merits, based on the facts and the law, not hiding behind technical defences.

I would propose that this committee consider an amendment that would provide for the extension of that principle to these types of claims to be resolved in the courts as well. This would provide a further avenue for the resolution of these claims, again on their merits, and in particular for those that fall outside the four corners of the mandate of the specific claims tribunal. For example, if those claims that exceed $150 million could be addressed by the courts on their merits without the application of limitation periods, I think that would be a very good step in that direction.

On the comment about the $150 million cap, we would propose some consideration be given for amendment that would permit claims over the cap to be dealt with either through binding arbitration or perhaps even by the Federal Court on a reference with respect to issues of compensation alone. That would provide another avenue for the resolution of those issues.

Finally, the appointment process. Under the current bill the Governor in Council would pretty much have carte blanche to determine who should be appointed to sit as adjudicators on this tribunal. We would propose that in order for this new tribunal to have legitimacy in the eyes of first nations and in order for it to be perceived as being fair and impartial, something has to be done to address what would appear to be complete control by one party to appoint the adjudicators to the tribunal. Perhaps even a screening process leading up to the appointments by the Governor in Council would go a long way toward addressing those types of concerns or perceptions of potential bias on the part of the people who will be clothed with the heavy responsibility of adjudicating these claims.

[The Chair, Conservative, Barry Devolin]

Thank you very much. Your opening statement is complete.

Members, we're going to have time for one round of seven minutes per caucus. If you want to share the time, you may do so.

From the Liberal Party, Mr. Russell is first.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good afternoon to each of you.

Mr. Maurice, it's good to see you again. We've met at a number of different forums.

I haven't had a chance to go through your brief in a lot of detail, but I've listened to your oral presentation. Some of the points are quite intriguing. I'll raise a couple.

First, I want to address the point I've been addressing with most witnesses. Most presentations and most witnesses say they haven't been consulted. We have brought this up as well with the government. In briefings from the department, they say they have no legal obligation to consult on this particular bill, primarily because it's voluntary and you can either choose to be a part of this process or not. Second, on its face, because it's voluntary, there's no impairment or potential impairment to people's rights or damage to one's interest. Maybe I could get a quick comment on that.

Then I want to go to page 6, where you talk about section 15 and the filing of a claim, how it's supposed to be filed, how it's going to be accepted, and not claiming anything other than compensation and that type of thing. You can't seek any remedy other than monetary, and it can't exceed $150 million. You're saying the tribunal should be able to not necessarily make an offer or order, but be able to make a determination that certain lands are owed to the claimant, the aboriginal group or organization. Is that right?

It seems you have a similar point when it comes to the claim limit. Maybe the tribunal cannot say or order the government to pay you more than $150 million, but the tribunal could make a finding that you're owed more than $150 million.

Those are very interesting concepts that are not specifically addressed within this bill. They would go beyond what this bill is now proposing.

On those particular points, if we amended it in some way to allow this to happen, does it comply with the interests that have been outlined here, that is, the speedy resolution of outstanding specific claims?

You can correct me if I'm wrong on those two different points around section 15 and the section concerning the cap limits. They're very interesting proposals.

[Ron Maurice]

Maybe I'll start with the point on consultation first.

First of all, on substance, usually there's never enough time to fully and adequately engage every community on these issues. What we see here is really a balancing act in terms of the efforts to pass the legislation, to get it through, but also to permit some input from first nations that are obviously going to be affected by it. But I do take the point that, because the process is voluntary, it will only impact upon those communities that decide to opt into it, that decide to pursue their claims through this process, and I think that is an important point.

The general rule with administrative tribunals as well, as a matter of law, is that they are not like courts in the sense that they create binding precedents. In fact, tribunals have the freedom to depart from their own precedent. If they make a decision in one case, they could very well, on a subsequent case, even though it's very similar, decide to pursue it in a very different direction and decide that perhaps, based on different arguments, different factual considerations, they're not bound by their previous ruling. So that's an important part of this as well.

Could there have been more time? Yes, ideally that would be wonderful, but when balanced against the need to see this legislation passed and to have access to an independent tribunal, I think the vast majority of people would say they support the bill, that they would like to see it go forward.

On the other point, in terms of the limits on the authority of the tribunal, first of all, on treaty land entitlement claims, I think it would be helpful if the mandate were clarified so that the tribunal did in fact have the ability to make a finding on the determination of what a land entitlement of a first nation is, for example. That would permit, in many cases, that claim to be resolved, then, with the involvement of the appropriate province. In some cases there are natural resources transfer agreements that have other obligations on the prairie provinces to fulfill the treaty obligations of the federal crown. So that could trigger, then, the requirement of the provinces to provide land.

Alternatively, the issue could still be addressed by giving the tribunal the authority to grant an order of compensation in lieu of land, specifically. I think that's really what's contemplated by the bill, but it's not entirely clear to me whether, say, a treaty land entitlement claim would fall four-square within the mandate of the tribunal. I think that's an area that could be clarified.

In terms of the compensation limit, yes, we are proposing, really, something that would be different from what's contemplated under the current bill. What we were proposing was that the tribunal could, in effect, make a determination, a decision, on the question of liability, but not on compensation. If it were to exceed its mandate beyond the $150 million, that issue of compensation could be referred to, say, the Federal Court, for a determination of what compensation is owed as a matter of lawful obligation.

[The Chair, Conservative, Barry Devolin]

Thank you. That's it.

Monsieur Lemay, for seven minutes, please.

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

Thank you for being here today.

A number of things concern me. I would have liked more time to ask you more questions. I must say, to you and to the others here today, that if you have submitted a brief and if it has been translated in time, you can assume that we have read it and are ready to ask you questions.

Having said that at the outset, I will say that I do not agree with you with respect to section 25. You wrote, and I quote:

Section 25 provides that a First Nation or other person may be granted leave to intervene in matters before the Tribunal. It is our view that third parties should not be permitted to be granted intervener status given that the Tribunal does not have any power to order a third party to pay compensation...

I do not agree with you because that is exactly what sections 22 and 23 of the bill provide for.

Maybe I am missing something, but if a lawsuit affects a province, it can intervene, it can be a party to the lawsuit and a decision can be rendered. I am not at all in favour of amending section 25 unless you can prove to me—and you are going to have a hard time doing it—that provinces cannot be parties to a lawsuit. They are parties to a lawsuit, should they wish to be, under sections 22 and 23 of the bill.

I am going to say everything all at once, so if you have any comments, you can make them in the time I have left.

There is a problem with one thing. On page 3, in the English version, the paragraph heading is "Power of the Tribunal to make binding decisions". The second paragraph starts: "We support the fundamental principle...the Tribunal must have the power to make binding decisions with respect to the nature..." I totally agree with that. That is why we are supporting this bill; its decisions must be binding.

But the middle of the following paragraph is a problem for me. I will read it slowly so that you can find it. It is on page 4, and begins as follows:

Given that the Indian Claims Commission will be dissolved, it is recommended that Canada consider the creation of the new ADR Centre...

Where do you get the idea that the Indian Claims Commission will be dissolved? I do not see that anywhere in the bill. Could you please tell me where you see it? It is the first I have heard of it. Perhaps you have information that the government has given to you but not to us. I see no reason for abolishing that commission at all. If you are telling me that the government has said that it plans to, we will have to talk.

Now here is the other question. I have a little difficulty with this. I have been a lawyer with the Quebec Bar for 30 years, and the judiciary is not consulted when a judge is appointed. I have a little trouble seeing why First Nations should be consulted when a judge is nominated and appointed. I am not talking about the nomination of the person who heads the Tribunal, I am talking about the person who acts as judge. The minister assured us that there would be criteria. We spoke to the Minister of Justiceat a meeting of another committee and he assured us that there would be criteria to make sure that judges who preside over these courts would be competent, meaning that they would be familiar with aboriginal law. That is my third point and I am going to leave it there so that you have the time to respond. Why do First Nations absolutely have to be consulted before judges are appointed?

[The Chair, Conservative, Barry Devolin]

You have about two minutes for your answer.

[Ron Maurice]

Okay, I'll see if I can do this justice within the limited time.

First of all, let me address the binding decisions. My understanding is that the Indian Claims Commission's inquiry function will be dissolved. They might focus more on dispute resolution, providing facilitation or mediation services from time to time. I'm not absolutely clear on this. I don't have all the details of how that provision got into the draft. But that's my understanding. I believe an order in council has already been passed, basically suspending any further public inquiries under that portion of the commission's mandate. I think this was done with a view to avoiding an overlap of authorities between the commission and the new tribunal, if it's established.

As for the appointment process, you compared it with the Quebec bar's not being consulted when a judge is appointed in the province. That is certainly the norm. This isn't an ordinary dispute, though. It involves first nations' aboriginal and treaty rights, which are protected under the Constitution and involve the crown as the defendant. It's different in the sense that a judge, when appointed, typically presides over a variety of civil disputes, primarily between citizens. This is a unique situation in which the crown finds itself in an inherent conflict of interest.

This is more about trying to ensure that the appointment process is managed so that first nations know that people who are appointed to preside over these important claims are impartial, fair, and knowledgeable enough to assist in the resolution of these issues. As long as the perception is that the process is fair and transparent, and that the people appointed take their responsibility seriously, then I think first nations will view this as being a legitimate body that can effectively resolve those disputes.

[The Chair, Conservative, Barry Devolin]

They'll have confidence to bring their claims forward.

[Ron Maurice]

I want to make another point about clause 25, the interplay between intervenor and party. If a province, for example, were to opt in and to say it had an interest and would like to participate and be bound by the decision, then I think that's fair game. I would say it should also apply to third parties. But third parties would have to have a vested interest in the outcome, would have to agree to be bound by the decision, and would have to recognize an obligation to pay compensation. Otherwise, the deck would be stacked against first nations. So in the interest of a level playing field, those parties should not be given intervenor status in this process unless they are there as a full party and participant.

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

Thanks, Mr. Chair.

I apologize for being late. As you can see, I have some additional challenges in terms of getting around, but I did have your brief in advance and was able to take a look at it.

I actually want to follow up on Mr. Lemay's point around the ICC. My understanding as well is that the inquiry piece will end as of December 31, 2008, due to an order in council.

I want to touch on the mediation piece because I notice in your brief that you talk about the fact that mediation can be another alternative. The details around what that process could look like are really vague. What I know is that in the past, with various governments, it needed consent of both parties in order to use mediation as a tool, and in the past, generally speaking, in most cases the federal government has refused to participate in the mediation process.

I'd like you to comment on that.

The second piece I'd like you to comment on is around the appointment process. We've had other witnesses who suggested that it would be appropriate to certainly have first nations involved in the appointment process for the judges who would be part of the tribunal, but there has also been the suggestion that perhaps there could be a panel of elders who would be selected to sit with the judges as well and to provide some advice and guidance along that process.

I'd like you to comment on that piece.

On the third piece I'd like you to comment on, I would agree that this legislation is necessary due to the incredible backlogs and the number of years that people have been waiting. My problem is that I don't necessarily see that this legislation will deal with the backlog.

So that my colleagues are clear, I'm talking about people who voluntarily choose to participate in the process who have already been in the process. At the time that they re-engage, their claim status will be reset to zero, and if they don't voluntarily choose, really their only option is to go to litigation. If we have a significant number of claims that are already in the lineup and have been in the lineup for a number of years, I'm not clear that this process is necessarily going to deal with the backlog.

I wonder if you could comment on those issues.

[Ron Maurice]

Sure. I'd like to address the point about mediation and the backlog and ask one of the other panel participants if they'd like to speak to a very unique and positive recommendation that a panel of elders could perhaps even assist in this process.

First of all, on the mediation and ADR, yes, historically it has actually been very difficult to get the crown to voluntarily participate in mediation. In fact, usually when they do participate, it's under the express condition that this isn't mediation, this is only facilitation. This person has a very limited mandate or they are not to weigh in on issues of substance, etc. I think all of that will go by the wayside, though, as soon as a tribunal with the ability to make that binding decision is introduced.

As I said, that really provides rigour for both parties to undertake an informed assessment of their own risks in terms of going in front of the tribunal. It's no accident that 95% of all civil actions settle prior to trial. They tend to settle on the courtroom steps when everyone is looking at the prospect of a winner-take-all scenario. It's really that risk that drives settlement negotiations. It keeps everyone honest. It gives everyone a reason to settle.

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

Are you suggesting the existence of the tribunal would encourage people to mediate before they got to the tribunal, then?

[Ron Maurice]

That's exactly what I'm saying. As I have put it, if you create the monster, if you give that tribunal the authority to make binding decisions, people take a step back and they'll go to the precipice and say, look, can we resolve this by agreement? There's always a better way. Now, if you have an opportunity to bring in skilled facilitators and mediators, they will create those opportunities and find those opportunities for a common ground and resolution between the parties. I really do think that just having that decision point as a driver for settlement negotiations will make this process work.

On the backlog, it's a very similar type of reasoning there as well. I think there is a really positive recommendation or principle embraced in the legislation of a three-year response to a claim. Mr. Big Plume can attest to this. We just recently received a response on a claim involving the Tsuu T'ina, which was submitted in 1995, and we've been promised year after year that we'd receive a response. We finally got it. It is 13 years, and now we have the response. At least they have something, right? That's not an atypical situation, either. I have many files. There is another one that was submitted in 1985 on which there is still no response today. I have another one submitted in 1997--still no response on that one. This is endemic.

By having a three-year window where the crown has to say it either accepts the claim or rejects it, I think that's good either way, as long as it's going to bring it to a head.

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

The only problem is that we have seen other cases where the government doesn't respond. I'm not talking about the Conservatives. I don't care which political party it is; no government responds in a timely manner. This will just kick it into the tribunal if they don't respond within the three years. Then the tribunal won't actually have a timeframe.

[Ron Maurice]

Fair enough. I think there will be some resource issues there about how the tribunal manages that workload. We may be creating a new problem by shifting the backlog. Like an elephant swallowing a basketball, it won't go over to the tribunal; it will be locked up there.

I hope that doesn't happen. I assume the crown is sincere in its interest to resolve these claims and try to respond as quickly as they can within the three-year timeframe. In fact, within the specific claims branch they're already responding to this legislation before it has even been passed. I'm seeing a more concerted effort by the branch to respond in a timely manner to these claims. They're obviously still working out the kinks, but I see this as a positive step, at the very least.

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

We've heard about some different experiences of people now being told they've been turned down, so that's also happening.

You said that some of the other panellists might have some comments on the elders.

[Jim Big Plume]

Yes. From the first nations perspective of respect for elders, we have our own internal judicial system that involves our elders to a great degree. We rely on our elders for their experience and wisdom. That is why I believe a lot of other tribes and parties prior to our presentation indicated that we would like to see our elders involved in the selection of judges, and that type of thing. Any case brought forward by a first nation would have elders included in the entire process.

Our elders are traditionally recognized as our leaders. Our chiefs and councils rely and depend on our elders very much. When a chief and council members are inexperienced in certain matters, they take their concerns to the elders and ask them for their valued judgment on how to resolve certain issues. We have that within our own court system now in Tsuu T'ina specifically. We also have that in the provincial court systems for criminal court cases and traffic court. Elders are allowed to participate not only in the recommendations for any applicable resolution to certain cases, but also in recommendations on how certain cases can be brought to the forefront in a manner that doesn't prejudice the individual, but assists in bringing forward a judgment that is practical for all the parties involved.

For demonstration purposes, when an elder is involved in a criminal case not a lot of things are considered by either party. They may not know the background, the history, or the circumstances behind the event that has taken place leading up to looking for a recommendation or assessment to bring resolution to the issue.

We would really like the committee to consider the incorporation of elders, to whatever level might be granted, within the legislation so they can participate fully. It's just a matter of traditional law. It's a matter of respect that there are people who have experienced more than we have. I'll be one of the first to admit that.