Indigenous and Northern Affairs Committee on March 31st, 2008

[The Chair, Conservative, Barry Devolin]

I'd like to call to order meeting number 20 of the Standing Committee on Aboriginal Affairs and Northern Development. We are continuing with our witnesses dealing with Bill C-30, an act to establish the Specific Claims Tribunal and to make consequential amendments to other acts.

I'm starting right on time today because we have many witnesses and a limited amount of time. I ask my colleagues on the committee for two indulgences: first, keep to the clock when it gets to the questioning round; and secondly, we are scheduled to end at 5:30, but we all have bells at 6:15, so if we go a little beyond 5:30, I'll do my best to have everybody out of here before 6 o'clock. Again, that will get to the questioning round.

For the witnesses, both those who are already at the table and those who are coming up in the second panel, I want to welcome you. As you may know, we're towards the end of this round of hearings, and today's meeting was to be able to get all the people who couldn't come to earlier meetings. It's a bit like the airlines. You invite 150 people to sit on a 130-seat plane, hoping they don't all show up. What has happened today is we've had many people who've expressed a desire to come to the committee, so we are a little busier than usual. As such, I implore you to keep your remarks brief. We've held many meetings, so we've covered many of the basics of the bill. I would hope that you could please come to the point quickly when you're making your presentations. That will allow us some time for questions and answers, and hopefully at that time you'll have an opportunity to follow up on some of the issues that committee members may have a particular interest in.

Today we have four groups on panel A. The first group is from the Assembly of First Nations: Regional Chief Shawn Atleo, and Roger Jones, legal counsel. The second group is from the First Nations Summit: Grand Chief Edward John, and Grand Chief Ken Malloway, who I presume is not here yet, but I see the seat. As an individual, we have Tony Penikett. Thank you for being here. Finally, we have the Atlantic Policy Congress of First Nation Chiefs Secretariat, Chief Lawrence Paul and Chief Noah Augustine.

Thank you all very much for being here. I thank you in advance for keeping your remarks brief.

I'd like to start with the Assembly of First Nations, Mr. Atleo, if you'd like to begin.

[Shawn Atleo, Regional Chief, British Columbia, Assembly of First Nations]

Thank you, Mr. Chairman.

Thanks to the committee for the invitation to appear. I've been in this town a week, and I certainly hope there is a seat for me on the plane west this evening.

[Witness speaks in his native language].

Those are just a few words in my language to acknowledge the territories of the Algonquin peoples.

As regional chief for British Columbia with the Assembly of First Nations, I'm here in my capacity as task force co-chair with respect to this bill. I've carried this work out along with my colleague, the co-chair, Mr. Bruce Carson, from the Prime Minister's Office. It was Mr. Carson and I who had responsibility. I was appointed by the national chief to carry this work out and I oversaw the process that culminated in the development of this legislation.

I'm very pleased to say that this bill represents what I feel is the best effort at achieving consensus on what a specific claims tribunal should look like, its mandate, its operations, and how to ensure that it evolves properly.

Rather than highlight the key elements of the legislation in my time here today, what I wish to do is focus my comments on the process that was used to develop the bill and the political agreement.

First, I want to talk about the task force process. The commencement of this joint process began with the development of the terms of reference and the elaboration of a work plan. Following the announcement, we were very pleased that the national chief was able to stand with the Prime Minister and former minister in this area, Mr. Prentice, to announce that the parties were going to work on this together.

An important first step agreed to by the parties was to use certain foundational pieces to develop the bill. One of these important pieces to note was the joint task force that was struck, I believe, in 1997. They produced a report and in fact a model bill. So while we were moving through this, there were many in our communities who were suggesting it felt like we'd been here before. There was this notion in the winter of 1997 that we would have a bill in 1998. So it's important for us all to be aware of the developments that have led us to this point.

Two other major pieces were the Specific Claims Resolution Act, which I know you've discussed or had interventions about here, and importantly the December 2006 Senate report called Negotiation or Confrontation: It's Canada's Choice, submitted by Senator St. Germain.

Of course the backdrop to this is knowing the history of the development towards this work, which has been noted at committee here: that it predates the Calder decision of 1973. So a tremendous amount of effort and work has been done by our people over the years.

In addition, the reforms, of course, that were set out in Justice at Last served as a blueprint for the federal officials. So having noted that we didn't begin with a clean slate, we nevertheless understood and, as the national chief did, embraced an opportunity to work on this together. From there we've developed an outline of the proposed bill and worked jointly based on consensus to put details to the outline.

There were a number of issues that could not be addressed in the legislation or that were beyond the federal mandate that was set out in Justice at Last. In order to facilitate consensus on these issues, the national chief and Minister Strahl concluded a companion political agreement, which commits the Assembly of First Nations and Canada to resolve outstanding issues.

This was a really important moment that the national chief would sign on to this agreement, recognizing that we are going to embrace a joint exercise with respect to this legislation but that many other issues, which I'll get to, we could not deal with.

The bill and the companion political agreement reflect the entire consensus reached on this important issue, and they must be read together. The joint task force process, it should be noted, concluded our last meeting just this last Friday.

The existence of a political-level committee, the joint task force, was to oversee the work of a technical-level legislative working group and other working groups. This was very instrumental in facilitating consensus. In other words, not to have any disconnect between the important professional and officials-level work going on, there needed to be a strong link with the political process. So as a member of the joint task force, I want to make it clear that I really endorse the process that we undertook to develop this legislation and political agreement.

Before moving to wrap my presentation up, I really would be remiss if I didn't comment on the process that led to first nations participation in the joint task force process. In my opinion, this is really about relationships between first nations and the government.

In March 2005 the first nations leadership adopted a report entitled “Our Nations, Our Governments: Choosing our Own Paths”. This report was based on a committee that I chaired. The report was co-authored by me and David Nahwegahbow. The report was a culmination of national first nations dialogue about first nations government, treaties implementation, and the resolution of claims, both specific and comprehensive. There is a wealth of information and good ideas contained in the report. Two very important principles captured by the work on the specific claims tribunal consistent with the report are that policy and legislative development by the crown affecting first nations should be done jointly and by consensus, and that certain institutional development, as in the case of the specific claims tribunal, was required to assist the process of reconciliation.

In May 2005, following this, the first nations and the crown entered into a political accord and committed the parties to work together jointly on an agreed upon agenda, which included specific claims. For the Assembly of First Nations, this report from 2005 and political accord provide for us the guide for joint development of the bill with the crown, and this led us to be able to accept the invitation from the Prime Minister and Minister Prentice to engage in this exercise.

The joint task force process that saw the Assembly of First Nations and Canada jointly engage in legislative drafting and policy development is exactly what is envisioned in the political accord on the recognition and implementation of first nation governments, and needs to be replicated in other policy areas. The mandate and the support for the Assembly of First Nations to continue our work based on that effort was refreshed in mandate by resolution by the chiefs this last year.

In other words, from a process standpoint, joint engagement in drafting has worked very well and is a milestone that must be built upon.

In moving forward, on reform of the specific claims process, there are a few remaining issues that are not yet resolved. However, we have a commitment from the federal government to continue discussions to resolve these outstanding issues, all of which are set out in the political agreement. As long as the commitments these two documents embody are lived up to by the government—in particular, the commitments embodied in the political agreement—we feel that the work that was carried out as a part of this joint process stands as a work in progress model for how first nations should be engaged in issues that have the potential to affect us.

I want to make clear my expression of strong support for Bill C-30, the political agreement. As I indicated at the outset, in my view this is really about relationships between first nations and the government, and I suggest strongly again that the process that we've used must apply in other policy and legislative work. Work such as the treaty conference we had very recently in Saskatoon must continue, and work on claims over $150 million that are outside of the cap are going to be very key.

My last comment is that at the joint task force meeting this last Friday I got a sense of a strong expression of political will on the part of the government, and we would encourage our respective principals, the national chief and the minister, to get on with the important work as quickly as possible. It should not wait for the full process to be concluded, because this is about us working together and it's about us bridging gaps of misunderstanding.

Thank you very much, Mr. Chairman.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Atleo.

Now I'd like to ask Grand Chief Edward John to take the floor, please.

[Grand Chief Edward John, First Nations Summit]

Thank you, Mr. Chair.

[Witness speaks in his native language]

In my language I wanted to begin by acknowledging our relationship with the Algonquin people on whose ancestral lands we meet today.

Thank you for the privilege to speak to you about Bill C-30. I am an elected member of the executive of the First Nations Summit in B.C., whose primary mandate is the resolution of the land question through negotiations.

I want to cover a number of areas: the process my colleague just referred to, the development of Bill C-30; standards for assessing first nations and crown relations; some of the provisions of Bill C-30; and then I have a couple of recommendations to make.

For us there is no question about the urgent need for a process independent of the parties to resolve the hundreds of grievances by first nations against the crown, which are commonly referred to as “specific claims”. In fact, a significant number of these claims arise in British Columbia. For example, there are probably in excess of 500 rights-of-way through Indian reserves, with an estimated value of $100 million. I'm not sure anyone has talked about that.

We were in the negotiating room with representatives of the Assembly of First Nations and Canada when the arrangement to proceed to Bill C-30 was agreed to. We saw this on that date as an important development, and certainly with the bill where it is right now we continue to see that as an important development. We welcome the effort and extend our thanks to AFN and to the AFN and Canada joint task force in collaborating to develop Bill C-30.

Standards for developing first nations and crown relations are historical. Even the modern-day pattern of crown conduct relating to first nations' interests is replete with unilateral, arbitrary, and self-serving policies, laws, and practices for and on behalf of the crown in the various interests it represents, including the public interest.

Minister Strahl's submission to this committee on February 6 was optimistic. He made two comments that are relevant here on this bill. He stated that the bill “carefully balances the interests of first nations and all Canadians”. The other point was on the task force that was established to oversee the development of Bill C-30. His overall assessment was that the result will be balanced and fair to everyone.

Given the history of B.C. first nations relations with the crown in negotiations and litigation, our assessment is more guarded. When we have the legal positions and arguments of crown lawyers at the initial establishment in the processes of the tribunal we believe we'll be in a better position to determine the issues of balance and fairness.

We have not seen in our history any instance when the federal crown has ever supported or intervened in support of first nations in any litigation involving aboriginal rights, aboriginal title to lands, territories, and resources, or in disputes with the provincial crown and/or third party interests. This is despite the fact that it has a fiduciary obligation to first nations people.

In fact, in our extensive examination of crown pleadings and legal arguments, the pattern of conduct is always the same: to deny the aboriginal people's existence and force them to prove that they do exist in their aboriginal territories, and to deny the existence of aboriginal rights and aboriginal title, notwithstanding that section 35 of Canada's Constitution recognizes and affirms aboriginal and treaty rights. This pattern must be assessed in light of emerging standards in the courts and internationally.

The courts have set a number of important principles that we think are standards we should judge this against. One is the crown's fiduciary obligation and duties to aboriginal peoples. Second is the honour of the crown not to engage in sharp dealings with aboriginal peoples. Third is the obligation of the crown to conduct negotiations in good faith. Fourth is that where legislation is being developed that concerns or impacts the rights of aboriginal peoples, the courts have made it clear that the consent of the aboriginal people is an important criterion in determining the adequacy of the legal duty of the crown to consult.

Recently, on September 13, the United Nations adopted the Declaration on the Rights of Indigenous Peoples. Article 43 talks about the “minimum standards for the survival, dignity and the well-being of the indigenous peoples of the world”, and that is the intent behind the declaration.

I wanted to briefly touch on preambular paragraphs 6 and 8 in the declaration, as well as articles 27, 29, 30, and 40. These are the declarations that address some of these issues.

Preambular paragraph 6 talks about concern that indigenous peoples have suffered from historic injustices, colonization, and dispossession of their lands, territories, resources. And it goes on.

Article 40:

Indigenous peoples have the right to have access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights.

Article 38:

States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

One of those ends includes, in article 27:

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and...tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, rights, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 29:

Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, of a just, fair and equitable compensation, for the lands, territories and resources which...have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

And that last sentence is an important one, the notion of “free, prior and informed consent” in matters relating to the use or the taking of lands from indigenous peoples.

Bill C-30 and the joint process through which it was developed goes some distance in meeting the new international standards and those set by the courts.

The first recommendation—and I agree with my colleague, Regional Chief Shawn Atleo—is that this process should be seen as an ongoing new mechanism for engaging first nations people in the development of legislation in the future.

Bill C-30 is an important development. The tribunal will be provided with powers to resolve the many hundreds of specific claims. The bill, however, contains extensive limitations on the crown's liability, risk, and exposure. It contains limitations on the scope of compensation—for example, monetary only, with a cap of $150 million and the ability of the crown to award monetary compensation at its discretion in installments. And fourthly, there are critical limitations on the valuation principles to determine compensation amounts. Is this a barrier to support for the bill? No. I think that this bill will have to be reviewed, once it's approved, in five years to determine the adequacy of the standards that are set within the bill.

There is a big concern around the cap, $150 million. There are communities that will lose the ability to have their claims adjudicated. A good example of that is the Okanagan Band. The recommendation here is that if there is to be some consideration for an amendment to lift the cap, that would be appropriate. If it's not possible to lift the cap, then there needs to be a strong political will and a strong signal from the government that these claims will be dealt with fairly and equitably.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

Thanks for being on time, everyone.

I'm trying to give people kind of a two-minute or a one-minute warning. If I don't catch you before a minute, I'll quickly intervene.

When you started, when you were speaking in your native language, I thought I caught a “Go, Canucks, Go!” in there somewhere, but I wasn't sure.

[Grand Chief Edward John]

Yes, you're absolutely right. They won last night, 6-2, so we're rooting for them tomorrow.

[The Chair, Conservative, Barry Devolin]

All right. Thank you.

Mr. Penikett.

[Tony Penikett, As an Individual]

Thank you, Mr. Chair.

I speak as a private citizen with a long interest in treaty issues.

I want to compliment the government on demonstrating the political will to proceed with this initiative, Bill C-30. I also want to compliment Minister Prentice and Minister Strahl on the joint drafting initiative with the Assembly of First Nations.

However, I wish that Parliament would take more seriously the joint nomination option and the larger issue of truly independent tribunals for implementation problems around treaties generally, not just specific claims issues. For example, Canada has negotiated in northern Canada over the last three decades treaties that constitute great nation-building achievements for this country, but, sad to say, every one of those agreements has generated implementation issues. Even INAC deputy minister Michael Wernick conceded that implementation remains a problem when he told the Senate Standing Committee on Aboriginal Peoples on February 12, “As a department, there is only so much that we can unilaterally accomplish in the fulfillment of the terms of implementation without the full participation of our colleagues right across the government.”

In 1999 Miguel Alfonso Martinez, United Nations special rapporteur on treaties, found that the great disappointment of treaty-making since colonial times has been the colonial governments' consistent failure to faithfully implement what had been agreed to in negotiations with first nations. “States with significant indigenous populations should establish a special jurisdiction to deal exclusively with indigenous issues”—Martinez said that in proposing that indigenous and non-indigenous equality was essential for truly independent adjudicative bodies. This is not a totally new idea. In the 1704 case of Mohegan Indians v. Connecticut in appeals to the Privy Council from the American plantations, England's Attorney General supported the creation of a permanent third party court to hear treaty implementation matters.

As the royal proclamation was forgotten for a long time in this country and ignored for a hundred years in B.C., that principle has been forgotten. But in 1975 New Zealand established the Treaty of Waitangi tribunal to hear issues arising from the 1840s treaty between Britain and the Maori. This body has an equal number of Maori and non-Maori commissioners, and may hold bilingual hearings.

It is important to remember throughout these discussions that treaties are covenants between two parties. In Canada, disputes between treaty signatories are adjudicated ultimately by courts appointed by only one of the parties. Parliamentarians, especially in 2008, might find reason to ask if this is fair.

As a mediator, I might argue that mediators and arbitrators could be more effective and efficient than any highly structured tribunal. But as we all know from Nunavut implementation issues, the federal finance department, for example, refuses to participate in arbitration processes, even those provided for in a constitutionally protected treaty. So in this case, arbitrators may not be an option.

However, I would submit that there are certainly enough first nation lawyers in Canada to fill all the seats on a bipartite body structured like a labour relations board, or for example a tripartite body like the B.C. Treaty Commission. So there is no good reason why a Canada and first nations joint appointment process, or at the very least a joint nomination process, could not work. Yes, I would concede that would create a precedent, but to my mind, as someone who has a long interest in these questions, it would not be a bad one.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you very much for your presentation and brevity.

Now, from the Atlantic Policy Congress of First Nation Chiefs Secretariat, Chief Lawrence Paul, please...or whoever.

[Chief Noah Augustine, Metepenagiag First Nation, Atlantic Policy Congress of First Nation Chiefs Secretariat Inc.]

I'll go first.

Thank you for having me here today. My name is Noah Augustine, Chief of Metepenagiag Mi'kmaq First Nation in Miramichi, New Brunswick. I'm also the co-chair for the Atlantic Policy Congress of First Nation Chiefs Secretariat along with my colleague here, Chief Lawrence Paul. We're going to break up our time, and I'll take the first part. Just give me a little notice when it's my time.

The Atlantic Policy Congress of First Nation Chiefs has been in existence since 1992 and represents 37 Mi'kmaq, Maliseet, Innu, and Passamaquoddy first nation communities in the Atlantic and Quebec regions. It has a mandate to research, analyze, and develop alternatives to federal policies affecting its member communities.

With respect to our position, our chiefs generally support Bill C-30 in its current form. As you are aware, there has been very limited progress to date in resolving specific claims, and fundamental reform and action are long overdue.

One of the primary objections we have had is Canada's continued involvement in the claims process, which we view as an inherent conflict of interest because Canada alone decides on the validity of claims made against itself. Our chiefs strongly support the creation of a fair and independent tribunal that is empowered to review ministerial decisions and make binding decisions regarding long-standing claims between first nations and the Government of Canada in a timely and cost-effective manner.

Although we feel there are many positive aspects to Bill C-30, there are some outstanding issues we feel must be addressed. We have six primary concerns. I'll outline three of them, and my colleague will address the last three.

The first concern is with regard to commitments made in the political agreement between the AFN and the Government of Canada. It is our understanding that Bill C-30 and the political agreement will work in tandem. Issues that fall outside the scope of the new legislation will be dealt with in the political agreement. We stress the need for adequate and meaningful follow-up by the Government of Canada on the commitments expressed to the AFN in the political agreement—i.e., a clear, workable, timely, and funded process. This includes all issues identified in the political agreements. They are specifically, first, establishing an appropriate and equally fair process for dealing with claims over the $150 million cap; second, creation of an oversight committee; and third, a commitment to joint reform of the federal additions to reserve policy.

We are pleased to hear that the definition of “specific claims” will include reserve creation claims as well, as confirmed in a letter from the Minister of Indian Affairs to the AFN B.C. regional chief dated November 26, 2007.

The second concern is on the appointment of judges to the tribunal. Clause 6 of the bill requires that the tribunal be made up of Superior Court judges who will be chosen from a roster maintained by the federal cabinet. In our view, it is crucial that some members of the tribunal be of first nation descent in order to better reflect the traditional legal systems, cultures, languages, and general and practical knowledge of issues facing first nations in Canada. The requirement in the bill that the members must be Superior Court judges may preclude participation by first nation judges due to the potentially very limited number, if any, on the roster in Canada.

The federal cabinet should have the authority to also consider another pool of first nation people as candidates who have either judicial—i.e., provincial—or adjudicative experience. It is hoped the roster will grow in the future to eventually include first nation Superior Court judges. However, it is our understanding that there are very few, if any, now in Canada.

Related to this, we are pleased to see the political agreement reflect a commitment by the Government of Canada that first nations will have input via the AFN with respect to the selection of individuals recommended to serve on the tribunal.

Our third concern is related to the unfair cap on monetary compensation. The monetary cap on compensation that the tribunal can award for damages should be increased or removed altogether. There could be many claims that are altogether excluded from this process due to the unfair monetary cap. This could lead to lengthy and costly litigation. We understand the vast majority of claims fall below the cap; however, it is unfair and unjustifiable that some first nations will be exempt from and not benefit from this expedited and independent process simply because of the amount claimed for compensation.

Before I pass it on to my colleague here, Chief Paul, I just wanted to add that as chief of Metepenagiag, I've also served as the chief negotiator with respect to our land claims, and recently we resolved two claims we had bundled into one. In that claim we had surrendered 160 acres of land, but in return we had a clause in there that provided us with the option to purchase 300 acres of land.

I just want to stress to this committee the significance of opportunity that is here, if we can speed up this process with the claims, with respect to economic development in first nations communities. In New Brunswick, in conjunction with negotiating a provincial sales tax agreement whereby 95% of all those provincial sales tax dollars come back to the first nation community on any economic activity on first nation lands—and that's why the addition to reserve policy is so important—accessing new lands under our land claims process has served as a crucial economic tool for us. I just wanted to stress to the committee here the significance that we have in terms of the economic development of first nations communities.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you.

Chief Paul, your colleague stole a couple of your minutes, but Mr. Penikett has a couple to offer you, so you have five minutes.

[Chief Lawrence Paul, Millbrook First Nation, Atlantic Policy Congress of First Nation Chiefs Secretariat Inc.]

Okay, thank you, Chair.

There's a lack of alternatives to monetary compensation. The Mi'kmaq, Maliseet, Innu, and Passamaquoddy people have had very strong traditional, social, economic, and cultural connections to their traditional territories. Our connection to our lands defines who we are as indigenous peoples. The bill does not grant the tribunal the option of awarding lands as part of the compensation package to a first nation. We believe this is critical, and we support the inclusion of alternative remedies as outlined in the political agreement. First nations should have the option of acquiring back the traditional land they claim or obtaining new land.

On the operation of the tribunal process, we have some concerns regarding the lack of details in the bill about the tribunal process itself. While it is assumed that most of these details will be worked out through regulations, and we recognize the need for the tribunal to have some flexibility and authority to deal with certain matters, we ask whether there's enough guidance in the bill to ensure that the tribunal does not adopt the same adversarial approach, which we are only too familiar with.

Related to this, first nations have in the past expressed concerns about inadequate research capabilities and insufficient funding to participate in the process. At a minimum, sufficient and independent funding must be committed by the Government of Canada to support first nations research and negotiation efforts as well as any other costs related to participating in the tribunal process.

There's a lack of ability to compel the provinces to participate. The tribunal does not have the ability to compel a province to participate in this process. A province must agree to become a party to this process before it is subject to the tribunal's jurisdiction.

We are concerned that a first nation would have to sue a province in order to obtain settlement of an outstanding claim. This is contrary to the spirit of the legislation, which is to address all specific claims under $150 million in a fair, independent, expedited manner. The Government of Canada must identify options to compel provincial involvement in the tribunal process, where it is warranted, as an alternative to the courts in resolving many of these long-standing claims.

In closing, as I mentioned at the outset, it's our position that we generally support Bill C-30 in its current form. However, our expression of support for this bill is subject only to the Government of Canada fully addressing all the outstanding issues committed to in the political agreement.

The Minister of Indian Affairs, when he introduced the bill to this committee, stated that the bill and the accompanying political agreement are the result of a collaborative approach between the Government of Canada and the Assembly of First Nations. We recognize that a political commitment to try to address change does not necessarily translate into actual change. However, we aim to hold the minister and the Government of Canada accountable to these commitments through our continued work and support of the Assembly of First Nations.

We wish to thank the committee for giving us this opportunity to express our views regarding Bill C-30, and we strongly urge you to seriously consider the issues we have raised regarding this bill.

Welálin. Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, sir.

Thanks to all the witnesses.

Committee members, we will have time for a single seven-minute round this afternoon. So if any of you want to split the time with your friends, just be mindful of that. I will give a one-minute warning when we get to six minutes. I will be strict on the seven minutes today, and I ask your cooperation.

To begin, from the Liberal Party, Ms. Anita Neville, please.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thanks very much, Mr. Chair. I will be spliting my time, I hope, with my colleague to my left here.

Let me thank you all for coming here today and for the substance and quality of your presentations.

Among you, you've all raised the various issues we've been looking at in this bill. I understand the will of everyone to proceed with this legislation. We, on our part, understand the importance of moving forward with it. Having said that, you've talked about the cap, the tribunal, provincial involvement, and the political accord. The cap is something we have heard much about. I'd like your comments on a number of things, but I'm time-limited. I'd like your comments on the cap and whether the process used—that is, the tribunal for settlements under $150 million—would or could apply to settlements over $150 million, with the understanding that it would go to cabinet.

Then my other question is this. What do you expect in the long term from the political accord? What are your hopes for it? Do you believe that the outstanding issues you've identified or are hanging loose will be addressed through the political accord?

Chief John, perhaps you'll start. My colleague says to choose one person, and I'm looking at you.

[Grand Chief Edward John]

Thank you.

On your specific question about the cap, whether or not the tribunal can make decisions and then take this matter to cabinet, I hadn't actually thought about that. I think it's an interesting scenario.

As it stands, we all know that if you're seeking compensation at a value of less than $150 million, you have access to the tribunal. For anything else, you have no access. From the evidence we heard—or I heard—from the minister, there are six to twenty claims that fall within the category of claims over $150 million. We have a very important one that I mentioned at the closing of my presentation, from the Okanagan Band. We also have the pre-Confederation Douglas claims up in the Sto:lo territory at the mouth of the Fraser River. Those are really important claims. What happens to those particular claims? And what happens if the government decides that those claims are not acceptable for negotiations?

They did accept the Okanagan claim for negotiations and walked away from those negotiations, leaving the community unsure what it should do. That leaves the courts as the only option.

My hope is that the political accord becomes a living and breathing document during the initial five-year term of this tribunal. It should be perhaps revisited and renegotiated at the conclusion of the five years, when the bill has been reviewed as well.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you.

Does anyone else want to comment?

[Tony Penikett]

If I may, I'd just like to comment on a matter of general policy. A former Deputy Minister of Indian Affairs, going back to the years of the Mulroney government, Mr. Harry Swain, has commented that one of the absurdities we have in public policy is that we have capped the costs of settlements by way of cabinet mandates or legislation like this, but we're quite willing to make unlimited expenditures on negotiations. It seems to me that in the long run that is not a sustainable policy. I would agree with Mr. Swain.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you.

[Shawn Atleo]

Mr. Chair, if I may, just very quickly, I want to comment on the question about the longer term.

One thing I would note is that this effort concluded in about five or six months. We understand that legislative efforts often take a longer time period, usually in the range of 15 or 18 months. We've got more than 600 first nations communities across this country, and the effort to reform this area has been under way, as we all know by now, since the late 1960s. I think what's important here is what I said at the outset, and it goes to your question about the long-term effort and the important challenges a committee like yours has to find a way to work together in resolving and reconciling issues that have been outstanding. This one in particular came into sharp focus around the year I was born. We can do much better, and that's the point here.

So I really appreciate that question. It's really critical that what has been laid out in this accord—that there be active and aggressive, assertive, and constructive engagement—be on an ongoing, regular basis. This should be, as Grand Chief John suggests, just the beginning. So I wanted to support that comment.

[The Chair, Conservative, Barry Devolin]

Mr. Russell, you have about a minute and a half.

[Todd Russell, Liberal, Labrador, NL]

Thank you.

I do appreciate your comments about the relationship you have with the federal government. When we were on the seas my father said always be very cognizant when you're following something like a bright light in foggy weather; you can get into more trouble than you can shake a stick at.

I remind you of the Declaration on the Rights of Indigenous People, which was rejected; the forcing through of the repeal of section 67; the cancellation of the Kelowna accord; maybe two national days of action that are going to be in three years; and now we have matrimonial real property, which is coming to the House without any type of process that's been outlined with regard to this particular legislation.

Our committee can make amendments to this particular piece of legislation. If you have one amendment that we could make, what would it be?

[The Chair, Conservative, Barry Devolin]

You have 30 seconds in total.

[Grand Chief Edward John]

The one amendment would be the removal of the cap.

[Tony Penikett]

I think a modest amendment would be to go to a joint nomination process for the tribunal.

[The Chair, Conservative, Barry Devolin]

Thank you.

Next we have Monsieur Lemay, from the Bloc.