Indigenous and Northern Affairs Committee on March 31st, 2008

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

I will take your word for it, Mr. Penikett. I have a bit of a problem with your proposal. I'd like to hear Mr. Atleo's views on this subject later.

Grand Chief Augustine and Mr. Paul said the same thing. Frankly, I can't see how we can have a joint commission to appoint judges. Either we go with Superior Court judges with all of the powers conferred about such justices, pursuant to the Judges Act, or tomorrow morning, certain members of the bar will want to take part in the appointment process, or omens' groups will want to be involved in the appointment of matrimonial court judges. That's the potential problem I see. You are not the first to testify before the committee.

I'd like to hear your views on this matter, Mr. Atleo. I have read Bill C-30. Pursuant to this bill, we would be moving from a conciliatory process to a somewhat more adversarial process. In essence, when ones goes before the Superior Court, one is involved in an adversarial process.

I am happy to be able to get Mr. Atleo's opinion. Why did you decide to recommend to first nations that they agree to a adversarial process before Superior Court judges? In particular, are all first nations in agreement on a process that automatically excludes joint appointment commissions?

[Roger Jones, Legal Counsel, Assembly of First Nations]

Thank you, Monsieur Lemay.

I have been requested by Regional Chief Atleo to respond to this, given that it's a highly technical issue that you raise.

First of all, the issue about the joint appointment is something that in fact was fully discussed in the task force. The task force members representing the Assembly of First Nations encouraged the joint appointment process, because it's something that had been reflected in the efforts of the previous joint task force and also in the development of the Specific Claims Resolution Act.

There is a distinction in recognizing that perhaps first nations ought to have a role in the appointment of judges and adjudicators, because the law coming from the Supreme Court of Canada says that for reconciliation to be achieved between the crown and the rights of first nations people, the perspectives of first nations peoples and their laws and their traditions have to be a part of the solution. And who better than first nations people can apply that in the instance of resolving disputes between the crown and first nations people? So there is a distinction with respect to other groups that might be claiming the same ability with respect to joint appointments.

The other issue that has come up in the course of this examination is with respect to the use of judges in this process. One of the things we understand—not that we're advocating the government's position here, but we fully understand it—is that years ago the Canadian Human Rights Tribunal ordered Ottawa to pay $5 billion in back pay with respect to pay equity. That sent a chill through this town with respect to whether or not the government was willing to acquiesce to the jurisdiction of a tribunal to resolve disputes that potentially had significant financial implications. Five billion dollars is a lot of money, and of course the government at the time—and subsequent to that, probably—is not willing to risk giving a blank cheque to a tribunal to make that kind of monetary award. That's what we understand to be the reason for putting a cap on tribunal awards.

Secondly, they don't trust tribunal members who don't necessarily have legal training to resolve these kinds of disputes; hence the requirement for appointing sitting members of the judiciary to these positions, presumably to act more responsibly.

[The Chair, Conservative, Barry Devolin]

Thank you.

You have just a little over a minute, Monsieur Lemay.

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

What we are hearing is very important. I would simply like to add one thing. From the moment the Superior Court is involved—and I served on that court for 30 years—a process is called into question.

I drew Minister Nicholson's attention to a problem when he appeared before the Standing Committee on Justice and Human Rights. I served on that committee when it was examining Bill C-31 respecting the appointment of judges. At this point in time, superior court judges are not ready to hear cases pursuant to Bill C-30. This is where first nations will have an important role to play. If we adopt the bill as it is currently worded, judges will most certainly be sitting superior court justices with the experience of non-native people. That is a debate that first nations will have to have. That is the choice they made.

As for the $150 million figure, I agree with you that the reference to this amount should be deleted completely. Superior court judges are empowered to hand down rulings involving substantially more than $150 million.

[The Chair, Conservative, Barry Devolin]

Thank you, Monsieur Lemay.

Ms. Crowder, from the NDP.

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

Thanks, Mr. Chair.

Thank you all for coming before the committee.

I have three questions, and I'm going to ask all three of them and let you fill in the time. I'll try to be fairly quick about them.

The first has to do with the appointment process. I want to come back to this, because it seems that the political agreement specifies that the chief will be engaged in a process for recommending members. So it actually relates not to the appointments but to recommendations. I would like you to comment on that. One of the suggestions that has come to us from other panellists is that perhaps elder advisers might be a good solution to balancing off some of the judge's non-aboriginal experience. I'm wondering if you could comment.

Secondly, in the transitional provisions under sections 42 and 43, my understanding is that some of the claims currently before the system are very long-standing. I pulled one sheet and some go back to 1991, 1998, 1987. In this transitional procedure, if people voluntarily choose to participate, will it in effect see the clock reset to zero for them once the bill comes into effect? I wonder if you could comment. It seems this would severely disadvantage a number of people who've had claims in the system for years and years. This is a technical issue that will probably have to go to Roger.

The third question I have relates to mediation. When the minister came before the committee, he talked about an evolving mediation role for the ICC. But it's unclear whether there would be more credence given to this mediation process than is currently given by various governments.

I'll turn it over to you.

[The Chair, Conservative, Barry Devolin]

Would you like to start?

[Roger Jones]

First of all, with respect to the mediation process, there is obviously more work to be done with respect to what a new Indian Claims Commission will look like, given that the one in operation now is essentially coming to a conclusion at the end of the year.

The other important issue, and this relates partly to the question by member Lemay, is that parties need to work together to develop rules of procedure for the tribunal. They need to make it less adversarial and to ensure that there's a case management component in the tribunal. This could take advantage of a new Indian Claims Commission, allowing parties to try to resolve their differences even before a determination is made by the tribunal. The political agreement commits the parties to work together on the development of the rules of procedure for the tribunal, so as to make it much more user-friendly and less adversarial.

With respect to the clock, there was discussion about how many of the claims have been in the process for a long time. Apparently, some have actually proceeded to the Indian Claims Commission and are awaiting some kind of report. It would be unfair to put everyone back to square one, where they'd have to line up for access to the tribunal. There is an understanding that the work on the political agreement needs to recognize that some claimants have been processed previously. Reports may have been issued, or some may be awaiting reports. There has to be a way to facilitate access to the tribunal for parties who have already been waiting for a long time. There should be a system of priorities governing the order of proceedings before the tribunal.

I believe Regional Chief Atleo has comments.

[Shawn Atleo]

I appreciate your raising the notion of the elders. One way to describe our elders is that they're our authority, our moral authority. What this effort, albeit, with its imperfections, given that people, after all, were involved, is really alluding to is the potential—and this is why I keep reiterating this issue of relationships and why the involvement of elders would be particularly compelling—to facilitate further bridging of the misunderstanding gap that has led business like this to go unconcluded for so long. It's the reason why an effort must be commended, when a current generation is prepared to step forward and suggest that we need to find the best possible manner to resolve decades-old issues that none of us around this table created. That has to be recognized.

That's why I keep reiterating that, notwithstanding your important comments, Mr. Lemay, around the conflict that we see in the way some of these mechanisms work, this is exactly the point we need to work to overcome. This is only alluding to the potential for that to be the case.

In particular, I want to acknowledge and appreciate that the elders carry the knowledge of the historic treaties, inform us, instruct us, guide us, and to have a role is something that would be very compelling, I think, among our people.

[The Chair, Conservative, Barry Devolin]

I see that Grand Chief John and Mr. Penikett want to give a brief comment.

[Grand Chief Edward John]

Thank you.

I have a couple of points on the appointment process. I would hope that the tribunal doesn't become a mini-superior court. It shouldn't be as adversarial as.... It has an option; there's a process. I think the crown and first nations as well need to ensure that the process is fair and that the issues are dealt with in an equitable way.

The bill provides in clause 12 for the development of specific “rules governing...practice and procedures”. The recommendation I had at the end of my presentation, which unfortunately I didn't get to during the initial comments but which I would like to recommend, is that first nation claimant groups should be involved in the process to establish a tribunal's practice and procedural rules. I think this is a place where your recommendation or suggestion to bring in advisers to the process would be extremely helpful overall.

Mr. Lemay talked about a completely adversarial process. That's part of the reason that I referred to the Declaration on the Rights of Indigenous People, particularly article 27, talking about the establishment of “a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and...tenure systems”.

I would expect that the practice and procedures of the tribunal should incorporate that and consider how to incorporate these ideas into its practices, into the procedures that it establishes.

Thank you.

[The Chair, Conservative, Barry Devolin]

Mr. Penikett, briefly.

[Tony Penikett]

Very briefly, Mr. Chair, I would say the great advantage of mediation tools, which are not widely used in the treaty process or any aboriginal government negotiations, is that you can involve self-design in the processes, so some of the advantages that have been talked about by the chiefs here can be incorporated.

One of the problems with the dispute resolution chapters in most of the treaties negotiated in the last 30 years is that they don't work. They don't work, I submit, because the dispute resolution processes were not tested during negotiations. That's a problem.

By happy chance, the British Columbia Treaty Commission process, though, has two government appointees, two first nation appointees, and a chair, who can come from any one of those parties. It is designed to wind up when it finishes the negotiating process in B.C. Maybe that's a hundred years from now—we don't know—but in the interim it is actually fairly well-designed. If Parliament and others, the three parties, wanted to give it an adjudicative process in the implementation of treaties around there, I don't think you would necessarily need judges.

But I would say this to Monsieur Lemay: it is correct, of course, that it lacks judicial independence now, which of course is the advantage of the court system.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

The last questioner today is Mr. Bruinooge, from the Conservative Party.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair. I may be splitting some of my time with Mr. Albrecht.

I would like to thank all of the witnesses today for some great testimony. We've had excellent witnesses throughout this process, and I'd like to commend you all today.

The last week has been an exciting time for us as a government. As I look at the political accord that we actually did sign with the AFN, one part of that accord has actually been fulfilled in terms of the treaty conference that occurred last week in Saskatoon. This was something that was promised in the accord and delivered last week. I took part in that conference, and it was an exciting opportunity to hear many of the suggestions and issues from many of the treaty chiefs across our country.

The question I'd like to start with, though, is in part in relation to some of the misinformation that is perhaps being put into the record by some of my colleagues opposite. There is, I think, a lot of sentiment that suggests that a cap is somehow a bad thing. The argument I've been making all along is that by having a cap of $150 million, it allows for not only the tribunal to focus on the great number of smaller claims that exist, but also allows for the federal government to be able to put its focus on the very large claims. And not only that, but by removing the cap, one could argue that the large claims might eat up the entire $250 million that has been allotted to this tribunal, and none of the smaller claims would in fact get resolved, and, again, we would be in the same situation we are right now with nearly 1,000 claims.

Mr. Atleo, would you concur that this type of logic works well within this concept of having a cap, of course, provided that there is the political will to resolve the larger outstanding claims?

[Shawn Atleo]

Thank you.

I think my colleague Roger made reference to our role within the joint task force. What we understood the government to arrive at with the mandate and under the leadership of the national chief is we agreed to engage with that understanding, that the cap was part of the government mandate, that we were going to work on a bill that was with first nations that were within the cap, and that it all the more, then, became important that we arrived at a political accord.

In other words, the notion here is that we're talking about a significant backlog, which I think we all understand and which I think Canadians need to understand, of close to 1,000 claims outstanding across this country.

So it shouldn't just be about dealing with the backlog. It should be about this notion of not leaving anyone behind. That's why it's important to hear the interventions of communities that do want to raise issues, that do want to suggest the issue of the cap. While as a task force co-chair I'm comfortable and, as I've already expressed, support where we've arrived at, it's all the more important that a committee like this really works together on addressing what I feel so strongly is our country's number one social justice issue.

This gets us moving forward. It requires in the political accord a commitment to making sure that those who are not within the cap are not forgotten. We have to remain committed to that. I mentioned earlier in my comments, when I concluded them, that it felt to me there was a strong expression of political will. I would hope that our respective principals would strike up the necessary working group and get on with the important job of making sure that indeed no one gets left behind.

Hopefully that responds to your question.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I appreciate that, Mr. Atleo.

Do you feel that the collaboration you received from our government was adequate in this process?

[Shawn Atleo]

I think this was really, in many ways, unprecedented. A new mark is being set. We've learned a lot. I would welcome the opportunity to have the kinds of conversations that would allow us to be instructed about how to improve efforts. I said earlier, we did in five or six months with over 600 communities.... For us in British Columbia, as one example, the day that this bill became public and was tabled was the very day that the B.C. chiefs were meeting. So you can appreciate that from that time period to here is a very short period of time.

I think that we need to develop a shared notion going forward of what a full and appropriate constructive engagement looks like. I think if we have results here, then we should build on that. An example is the differences that there might be between first nations and government about what constitutes consultation. I don't think it is helpful to us to have an environment within which there are differing opinions about what that means. Now, many first nations will also say we've been working on this thing for decades, and it is absolutely critical that we deal with the backlog.

Again, I hope that responds to the question you're suggesting. I'll repeat, we need to improve on, strengthen, and grow out or build on this process.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

You agree it was a good constructive process that you've entered into with the government on this.

Going further than that, after we consulted with the AFN to deliver this landmark legislation, we of course entered into the political accord in which we've already been able to achieve some results in relation to the treaty conference, as I mentioned in my last statement. Also, in that political accord we reference how the appointment of the judges will be done in consultation with the national chief.

Mr. Atleo, do you believe that approach will work for your organization?

[Shawn Atleo]

Again, this comes back to earlier interventions. At the joint task force on the appointment process, the responsibilities of the minister, the inability of a federal ministerial authority in these areas, and the mandate upon which the government was coming to us was made clear to us.

As I said in my earlier statements, this is what I would suggest is the best consensus to arrive at, in that we have the national chief able to have a say and other concepts being brought forward, like the involvement of elders. Clearly, this is stemming from the need for us to be full partners.

We need to continue working on the relationship side of this, where we are coming from based on existing title and treaty rights in this country. As other members have suggested, we could be applying these kinds of concepts to other initiatives and improving based on this collaborative and constructive engagement exercise.

[The Chair, Conservative, Barry Devolin]

Thank you very much, Mr. Atleo and Mr. Bruinooge.

That concludes this first panel.

Before I suspend for a minute to change witnesses, I would like to thank the witnesses for being here. I'm not going to be able to come down to thank you personally because I need to get things rolling again here in a couple of minutes, but I thank you very much.

I'll suspend for two minutes for the new witnesses.

[The Chair, Conservative, Barry Devolin]

If I could have my colleagues and the witnesses take their seats, please, I'd like to get going on the second panel. I appreciate that we're trying to do this very quickly today.

I would like to proceed with the next panel today dealing with Bill C-30. I'm aware these hearings are being televised. I'm never sure how much background to give our home audience. Surely there's something else on television this afternoon.

In our second panel this afternoon we again have four delegations. From the Assembly of First Nations from Alberta, we have Chief Wilton Littlechild and Chief Charles Weaselhead. As the second group, we have Rick Simon appearing as a regional chief from Nova Scotia and Newfoundland and Labrador. The third presentation is from the Algonquin Nation Secretariat, Grand Chief Norman Young, Chief Harry St. Denis, and Peter Di Gangi. Finally, but not least, from the Southern Chiefs in Manitoba, Grand Chief Morris Swan Shannacappo, and Carl Braun.

I think many of you were here when we started an hour ago. I'm going to ask each of the delegations to make a presentation of ten minutes or less. I will try to catch your eye with a two-minute warning. If I don't, I'll verbally give you a one-minute warning, but I will stop it at ten minutes. Then we will move on for a round of questioning.

I would like to begin with the Assembly of First Nations from Alberta, with Chief Wilton Littlechild.

[Chief Wilton Littlechild, Regional Chief, Alberta, Assembly of First Nations]

Thank you very much, Mr. Chairman, for the invitation to join you in your study of proposed Bill C-30. It's certainly an honour for me to have this opportunity to participate and offer some brief comments from the perspective of a joint task force member.

At the outset, I want to thank National Chief Fontaine for his confidence in allowing me to serve with Regional Chief Atleo and Regional Chief Joseph on this very important legislative initiative. While tribute belongs to all task force and working group members and staff, for the record I want to acknowledge the outstanding work of our co-chairs, Mr. Bruce Carson and Chief Atleo. After 60 years of effort by many people, we now have in front of us Bill C-30. I think it's a tribute to their effective chairmanship.

Over several meetings you have heard excellent witnesses with views on the best way forward and the next step in our collective desire for justice at last. Please allow me to add my voice to the calls for an improved system for the resolution of claims. I also had the honour to serve on a previous committee as a member of the 34th Parliament for five years. My comments will be based on that experience as well.

My first remark is a personal observation on the parliamentary process. While serving on several committees, it was always my belief that indigenous issues and matters affecting first nations directly ought to be and could be dealt with in a non-partisan manner. Realizing the traditional procedures in both chambers, this is probably just a dream. Nevertheless, the approach of a joint task force with participation from the Prime Minister's Office, the Department of Indian Affairs, the Department of Justice, and the Assembly of First Nations in drafting legislation presented a new model for an effective way forward.

This partnership with representatives from the crown renewed my belief, because of the successful collaboration with members, that it is a model worth considering for future legislative initiatives. Together with other creative working models, like ex-officio members on your committee, the likelihood of success for adoption of legislation that will be accepted by first nations is greatly increased.

Secondly, on the method of work, while the suggestions above can still be improved based on our recent experience, allow me to recommend possible areas of improvement. The legislative drafting could begin earlier, with consideration of principles or even local community-drafted legislative proposals as a basis for discussion. Direct and meaningful participation by first nations representatives at the outset could lead to win-win outcomes.

While I respect that not everyone may agree with this method of work, it is worth some study. Some may argue that parliamentary rules of procedure and legislative drafting do not allow this. I would argue that it may be time to change the rules. It is my view that some of the criticism about lack of consultation was due to the short timelines and the need for confidentiality in the legislative drafting.

Third, it is still my firm belief that the United Nations declaration is a partnership framework that is a solution. As a declaration of good will, it offers us a basis for building better relations. Indeed, in the implementation of Bill C-30 we should be guided by the UN declaration's terms of reference—for example, articles 19, 28, and 32.

In the interest of time I'll only quote article 19:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them

As you know, on March 7 the United Nations Committee on the Elimination of Racial Discrimination called on the United States to apply the UN Declaration on the Rights of Indigenous Peoples. I quote from their report:

...the Committee finally recommends that the declaration be used to interpret the State party’s obligations under the Convention relating to indigenous peoples.

As a previous witness, Chief Ed John, referenced in other articles, it underscores the value of the UN declaration in going forward.

Fourthly, the method of work that produced Bill C-30 is a very important first step in our journey that gives the United Nations second international decade theme, the theme being partnerships for action and dignity. The method of work, in my view, gives that theme real meaning.

Our elders advised years ago.... [Witness speaks in his native language]

If someone is going to make law that will affect your life directly, it's better for you to be there to speak for yourself. In that connection, I was very honoured to serve on the joint task force and to see the words of our leaders being put into action.

Mr. Chairman, we should not fear success—success like the recent treaty conference in Saskatoon member Bruinooge just referred to. It was a good first implementation of the political accord signed by Minister Strahl and National Chief Fontaine. For all the good reasons that previous witnesses have stated, I support the work of a joint task force as our best effort, given the mandates we had in jointly drafting Bill C-30. We can build on the strengths as we go forward.

In closing, I join the voices who have called on the adoption of legislation to establish an independent tribunal that ensures impartiality and fairness, greater transparency, and faster resolution of claims in a way that restores confidence and once again builds better relations among our peoples. We can indeed move forward together in a spirit of partnership and put our joint energies into building a better future.

Thank you very much, Mr. Chairman.

[The Chair, Conservative, Barry Devolin]

Thank you, Chief.

We've used about eight minutes.

Chief Weaselhead also wanted to make a comment.

[Chief Charles Weaselhead, Blood Tribe, Assembly of First Nations]

Thank you very much.

I want to begin by acknowledging the standing committee for giving me the opportunity to speak on our behalf from Alberta, and more specifically from the Blood Tribe, or Kainai.

My name is Chief Charles Weaselhead. I'm the chief for the Blood Tribe. I'm also the grand chief for Treaty No. 7 in our southern Alberta territory.

The submission on Bill C-30 by the Blood Tribe, or Kainai, to the standing committee on aboriginal peoples was given to Bonnie Charron on March 7, 2008. Due to time constraints, the Blood Tribe will not go through the entire submission. Instead, we'll share with the standing committee an executive summary that highlights important aspects of the original submission. The executive summary touches briefly on the historical and cultural context of the Blood Tribe and the contemporary Blood Tribe. It also identifies the relationship with Canada, identifies the concerns with Bill C-30, and provides seven recommendations to the standing committee.

The tribal principles that govern the Blood Tribe's actions are articulated in the elders declaration that we refer to as Kainayssini. The declaration is a recording of what the elders understand to be the purpose of our existence at Kainai. Kainayssini sets out the tribal system and guiding principles for the protection and preservation of that system, and lays out a practical guide as to what must be done presently and in the future to ensure our survival. We must maintain the foundations of our existence, including our land, our language, our culture, and our political, economic, and social rights.

The Blood Tribe, or Kainai, is located in southern Alberta on the Blood reserve, the largest Indian reserve in Canada. With just under 520 square miles, it has a population of over 10,000 members.

The Blood Tribe's historical relationship with Canada is rooted in Treaty No. 7, which was entered into between the parties, on a nation-to-nation basis, on September 22, 1877. The treaty is a solemn and binding agreement that exists in perpetuity. By Treaty No. 7 we agreed to share our lands with the British crown, except for specifically reserved areas that are kept for our exclusive use. Therefore, we retain the same legal and political status we had when we entered into Treaty No. 7. Specifically, we retain the right to be self-governed, and our leadership continues to be the governing body of our Blood people.

From this honour duty flows the duty to consult whenever any legislation has the potential to affect our aboriginal and treaty rights, such rights being constitutionally entrenched in subsection 35(1) of the Constitution Act of 1982. The duty to consult may in turn require accommodation on the part of Canada and our consent. Treaty No. 7 created certain obligations on the part of Canada. In particular, Canada is required to act with honour in all of its dealing with the Blood Tribe.

In regard to Bill C-30, the Specific Claims Tribunal Act, the purpose of this act is to establish the specific claims tribunal, the mandate of which is to decide issues of validity and compensation relating to specific claims of first nations. The Blood Tribe has a number of concerns with regard to Bill C-30, and we set them out here. It is pointed out that this submission does not constitute consultation but sets out our concerns with the proposed legislation.

First, with regard to treaty rights and the duty to consult, the Blood Tribe, one of the largest stakeholders, was not consulted in the discussions leading up to and during the drafting of the proposed legislation. The duty to consult is the duty to consult with the holders of that right—that is, first nation governments that represent their members and communities, not national or regional first nation organizations. Specifically, the Blood Tribe represents itself. It is not represented by any other body, and expects to be consulted with.

Item two is non-derogation. Bill C-30 does not—