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.