Indigenous and Northern Affairs Committee on April 2nd, 2008

[The Chair, Conservative, Barry Devolin]

Welcome. I would like to call to order the 21st meeting of the House of Commons 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.

Before I introduce our witness for today, I just wanted to make a couple of housekeeping comments for members of the committee.

First of all, during this three-week section that we're beginning now and will continue with for two more weeks, we had invited relatively large numbers of witnesses for each of the six meetings, on the expectation that some would be able to make it and some would not. We thought if we invited ten per meeting that five would say yes. Our 50% average is about right, only we have ten for some and one for others. Our witness today will have our undivided attention, which is a good thing.

But seriously, committee members, we have done our best to try to even this out, with limited success. I ask you to indulge us over the next couple of weeks. We're going to have a couple of meetings with one or two witnesses, and we're going to have a couple of meetings with larger groups. We'll just have to manage through that. We have tried to redistribute the witnesses into some of these other meetings, but again have had limited success, given that people have made travel plans, and a week away it's hard to do these things. I ask you to indulge me in that regard.

The second point I'd like to make is that today we will have bells at 5:15. The meeting will end a little bit early anyway, and we'll try to make our way through two rounds of questions today. I anticipate we will have time to do that. Recently some members have pointed out to me that when we have so many witnesses, we only get one round per questioner, and for some of the members they haven't had the opportunity to speak in those sessions. Hopefully we're going to be able to deal with that today.

Having said that, I would like to welcome our witness for today, Professor Bryan Schwartz, from the University of Manitoba.

Professor Schwartz, I wanted you to know that about a month ago, when we asked committee members to put forward names of who they thought would be strong witnesses and would have something to offer us, your name showed up on several lists, from several different caucuses, as a matter of fact. I know I'm looking forward to hearing what you have today. You can make an opening presentation to us of about ten minutes, and then we will follow that with rounds of questions from our committee members.

Professor Schwartz.

[Professor Bryan Schwartz, Professor, University of Manitoba]

Thank you very much, Mr. Chairman.

I'm appearing here as an independent academic, which I have been for 26 years. Intermittently in the last eleven years, including in this round, I have been an adviser to the Assembly of the First Nations on the creation of the new specific claims bill. I have some practical experience from that, but any views I express are my own. The Assembly of First Nations is not responsible for them and is certainly free to take a different position on any of these points, but they have graciously permitted me to appear here in my own capacity.

The last time I appeared before a parliamentary committee, it was a Senate committee. It was the committee that produced the Senate report Negotiation or Confrontation: It’s Canada’s Choice, which made a very valuable contribution to this round. Believe me, I had no inside information that anything actually was going to happen. But I did say at the time that in my entire life I had never seen a convergence of elements such as would permit a longstanding and intractable problem to finally be solved. It just seemed to me at the time that everything was coming together.

A lot of work had been done in the past. Some of it had come to naught, but we knew a lot of the pieces that were needed for an independent claims body. Bill C-6 was not a success, but the opposition parties had engaged with the issue and they made a lot of constructive suggestions that were eventually incorporated into this bill.

The basic issue of specific claims, I think, was increasingly recognized--as I colloquially call it--as non-theological. It really doesn't depend on your philosophy, as long as you accept that lawful obligations should be addressed. No matter which party you belong to, most folks think it's the duty of the government to honourably pay its lawful obligations within the larger context of paying down the Canadian national debt generally. All the elements seemed to be right, and here we are a year and a half later, and everything did go right.

I believe that the new specific claims bill that is before you is a tremendous achievement. That doesn't mean that it meets the platonic ideal of what the absolutely impeccable first nations specific claims bill would look like, but I think it is the best agreement, the best piece of legislation achievable, at this point in history. It represents, finally, a successful conclusion of efforts to achieve something like this that has literally taken over 60 years. It would be a great accomplishment to now see it passed into law and passed into law quickly.

My concern, frankly, is that I have a real sense of urgency here. It's a minority Parliament, and anything can happen. I would greatly regret to see this achievement lost and somehow relegated to one other issue in a future Parliament, when we are now so close to finally succeeding after so many years of frustration.

Very briefly, I'll deal with some of the positive features of the bill.

Independence has always been at the core of the debate. The concern was that the federal government had the last say, for all practical purposes, in claims against itself. This bill provides for an independent body. It will be staffed by judges, people trained and expert in making independent decisions. There will be a voice for the Assembly of First Nations in discussing which particular sitting judges will be appointed to the tribunal. That will be done discreetly and according to the terms of the political agreement, because we must respect the dignity of sitting court judges. We don't want public debates about who's good and who's bad for this job. But very significant progress has been made on that issue.

Delay has been a tremendous problem throughout the entire system. Bill C-6, unfortunately, had too many obstacles, too many unilateral choke points for the minister. A creative idea that was made during the Bill C-6 round was to put in fixed timelines, and now we have them. This new bill says that certain stages can only take so long, and then a first nation can move a claim to the next stage. A claim cannot be delayed at the consideration stage by the minister indefinitely. After three years, the first nation has the ability to move it to the tribunal. It is the same thing with a claim that's been stuck in negotiations for more than three years.

With respect to criteria, Bill C-6 made some progress, but there were still some points of very serious omission. One of them was the issue of unilateral undertakings, which had been recognized as a potential source of specific claims in the Guerin case by Chief Justice Dickson. It is very clear now, in the drafting of criteria, that unilateral undertakings that give rise to a legal obligation can be a specific claim.

I know there have been concerns from British Columbia, for example, about Wewaikum claims, a promise by the federal government to carry out a treaty commission report. In my interpretation of this legislation, those are very clearly covered. We were also concerned in the Bill C-6 round about whether pre-Confederation claims were adequately addressed, and there is adequate language in the new draft to address virtually any pre-Confederation claim issue.

Monetary jurisdiction was a very serious concern with Bill C-6. It was sometimes referred to derisively as a small claims commission. The $150 million means that the overwhelming majority of specific claims can be addressed. No federal government to this date has been prepared to proceed without an individual claims cap. Perhaps after a confidence-building process with this new tribunal that can be achieved.

The just treatment of large claims continues to be an issue that I hope will be closely attended to, including by parliamentary committees like this. It is addressed in the political accord, and there's a lot of work still to be done in that. That work in the short run will have to be done outside of legislation, because the $150-million cap means it will not be dealt with. Access to the tribunal will not be provided within the legislation.

One criticism that has been made of the new bill is that the remedial authority of the tribunal is confined to giving money damages. The new tribunal will not have the authority to say “This was your land. It was unlawfully taken away and it's yours again.” No proposal for a new system that has had a buy-in from the federal government over the last eleven years has gone beyond providing for money jurisdiction. Successive federal governments of both stripes have thought that it would be too complicated, too problematic to have an administrative tribunal deciding who owns real property rights, particularly since the federal government doesn't own most of the land to which claims would pertain.

I do want to say that it would underestimate the value of this new bill to have a tunnel vision about the remedial jurisdiction of this new body. Yes, it can only give money damages--that's all the tribunal can do--but before the tribunal makes a decision you have a long process of the claim being considered and opportunities to negotiate. There will be an alternate dispute resolution body to help the parties negotiate. At the negotiation stage the first nation and the federal government are not confined to settling up on the basis of money only. They can be as creative as they wish. The potential that there will be a money award gives an incentive to the federal government to try to negotiate seriously and arrive at creative solutions.

Indeed, after an award is given there is still an opportunity for creative solutions. A band could say, “Well, you gave us our award for $100 million, but actually we would be happier if it was some money and revenue-sharing, or some money and you can find a way where we can get access to some land”. And creative negotiations are possible after an award as well.

So yes, it's a limitation on the jurisdiction of the tribunal. It's a limitation that has never been transcended, even in the model bill, in the 1998 joint task force report. I think one has to recognize that it is a limitation for one specific purpose--what a tribunal can do. It does not limit what the parties can do by way of negotiating a creative settlement before a decision of the tribunal, or afterwards.

Some concern has been expressed about adjudication and adversarial processes. The new system as a whole, not all of which is contained in the bill--some of it will be worked out under the political agreement--will provide for alternate dispute-settling mechanisms, and these will be available at the tribunal stage, not only at the initial filing stage. The rules of the new tribunal do provide for case management and they do provide that a judge can oversee references to mediation, for example.

Sometimes we do a post-mortem when things go wrong. We do it less frequently when things go right, but it's worth doing it in this case. What went right and how can we do it again? In 1998 the joint task force report produced a model bill full of good ideas, many of which are now going to become law if this bill is passed. It was very successful at the technical level: what was missing was sufficient engagement at the highest levels of government.

So officials came up with a really powerful proposal, but government was not ready to seriously move with it at the time. It showed that officials working together can not only engage at the level of concept, but can sit down and wrestle with all the fine details needed to make a functioning system.

The 2003 bill, which is still on the books but hasn't been proclaimed, went off the rails when the dialogue ended even at the technical level. At some point the federal government said, “Consultation is over. Now you're in listening mode. We'll tell you what's happening.” The bill was worked on internally through the federal system. A lot of people in the federal system in good faith said, “This is my problem, that's my problem.” It was sort of an internal negotiation, with the federal government talking to itself. Maybe none of the individual changes seemed to be too bad. You added them all up and ended up with a bill that was simply not acceptable to any significant first nations' constituency.

This time things went right at both the technical and political levels. We had a very successful engagement at the technical level. My colleagues at AFN with whom I worked on this—Candice Metallic, Roger Jones, Tonio Sadik, Vice-Chief Atlee, and so on—at the technical level had a very positive and constructive relationship with federal officials like Sylvia Duquette from INAC, Diana from INAC, Bob Winogron from the Department of Justice, and Jean-Sébastien Rioux, the chief of staff to Minister Prentice.

I can tell you without going into details that there were times of frank and candid exchanges of opinions; it wasn't all group hugs, but it was a very positive engagement in which people were trying really hard to solve technical problems in an honest and forthright manner. I think we were very successful in that respect.

What also made it work was liaison with the highest levels of government. The Prime Minister's staff member, Bruce Carson, was involved in a joint task force committee that oversaw the technical negotiations. That meant when we got stuck on certain points and needed direction, the liaison that was needed between the technical level and the political level worked.

We had commitment at the highest levels of government, and commitment at the technocratic level of government. You need both. It's surprising, but it's a truism of political science that just because the senior levels of government want something doesn't always mean it happens; you need support from the technocrats as well. Technocrats can't make it happen without engagement from the highest political levels. Both happened here.

We had a process of partnership, not only over a few months, but all the way back to the joint task force eleven years ago. I know there's been some criticism that some first nations thought, when they saw the product, they hadn't been consulted enough. I can certainly understand that when you get a new technical bill and have only a few weeks to comment on it, of course you're going to have concerns about whether you've had adequate time to assimilate it.

In fairness, one of the reasons people couldn't see things earlier was because there was a joint agreement that negotiations would work better if they were done confidentially; that it was easier to be candid and try out ideas in a confidential fashion. The federal government has legitimate constitutional sensitivities about sharing legislation in drafting form with outside constituencies. So we had to work under some conditions of confidentiality. It wasn't out of any desire to exclude anyone; it was a necessary part of having the kind of highly detailed engagement in every aspect of the bill that has made it the success I think it is.

I haven't heard all the testimony or seen all the submissions, but it's my understanding from talking to people who have that while there are some conceptual points that people may not agree with—like the $150-million cap—considering the complexity of this bill, there have been very few if any points where people have said “this is just technically wrong”, or “this doesn't make sense”, or “this doesn't add up”.

People on the first nations side don't think there should be an individual claims cap of $150 million; they would like to see no claims cap, and that's a policy disagreement. But if you get to the technical working of a highly complex bill like this, the fact that it seems to have stood up so well to scrutiny and criticism is a real tribute to the process that preceded it.

This process gave the Assembly of First Nations not only an opportunity to vet it, but an opportunity to contribute creatively to the content of the bill.

You can look at the bill and see some creative, innovative features that I think have added to the feeling among first nations that on the whole, while not ideal, this is a fair and legitimate new system. The preamble of this new bill reflects an AFN creative contribution. The idea that there will be an advisory committee to the tribunal in the making of its rules is another AFN contribution.

I've read some of the testimony here. People wonder how elders get a role in this. Well, that will be one opportunity. When the tribunal adopts its own rules, there will be opportunities for all kinds of people to give the benefit of their insight and experience and expertise into contributing to the rules of this tribunal.

We've recognized all along that if all you do is cut and paste the Federal Court rules, this isn't going to work. You need rules of this tribunal that are flexible, expeditious, more informal, so that you can actually get claims settled and not spend eight or ten years litigating or getting caught up in pretrial processes.

The political agreement was a creative contribution from the Assembly of First Nations. It contemplates an ongoing liaison and oversight committee, a forum where the dialogue can continue. It will tackle some of the points on which the first nations believe the current bill is short of the ideal. It will tackle the question of claims above the cap, claims over $150 million, will begin the discussion on what to do about claimants who can't bring a claim under this system because they don't have band status, will deal with the question of additions to reserves, when bands get monetary judgment but want to buy their land back and have it recognized as a reserve.

In 1787 Benjamin Franklin emerged from a drafting convention and was asked by a citizen, “So what did you give us, a monarchy or a republic?” He said, “A republic, if you can keep it.”

The reason I cite that is that, yes, this is a tremendous bill, in my view—and in terms of what's practically achievable here now, not in terms of some kind of theoretical absolute ideal—but even a very sound bill like this will only work in practice if there's follow-up. There's no point in having a system, for example, where claimants have the theoretical ability to access the tribunal but are in no financial situation to do their research, to advocate their claim, or to appear before the tribunal. This liaison and oversight committee is supposed to look at issues such as principles and access to funding. Absent that, the whole system could turn out to be a great disappointment.

For the tribunal rules, you need commitment on both sides, the federal government and the AFN each making their own suggestions as to how these tribunal rules will work. We're hoping that perhaps we can make a joint submission to the tribunal that will contribute to the tribunal's deliberations on how this will work.

I feel a sense of urgency about passing the bill now, before anything can go awry, not because of the bill itself but just because of the macro-politics in which it's located.

The parliamentary process has contributed in a great many ways to its success, from the Senate committee report to the amendments that were made by opposition parties to bills introduced by earlier governments. I think this process has been very useful in giving people a chance to scrutinize and discuss the content of this bill.

But with the greatest respect, I would suggest that the primary and perhaps exclusive focus, unless you can find some technical errors that we made, should be on trying to move the bill through the House of Commons and the Senate stage, say by the end-of-May break, and focusing the attention on what happens next: the “republic, if you can keep it”.

What role can a parliamentary committee make to ensure that this isn't just a Potemkin village kind of statute, but one that makes a real difference? We have the agenda and the political accord. We note what kinds of issues have to be addressed in the months and years ahead: recommendations about this committee supporting the importance of those steps being addressed; supporting the need for the federal government to continue to engage and to provide whatever resources it needs to the Assembly of First Nations and other first nations partners, so that they can consult and contribute; perhaps continuing to exercise an oversight function, having hearings six months or a year from now and asking, “Is this actually working in practice?” That would be a continuation of the very positive role that the parliamentary process has played in the creation of this bill to date.

I'm sorry if I went a little over time, but that's my overview of where we are, from my perspective, on the bill.

Thank you very much.

[The Chair, Conservative, Barry Devolin]

Thank you very much, Professor Schwartz. That was very enjoyable to listen to, and I look forward to questions from my colleagues.

The first round is a seven-minute time slot, followed by a five-minute round.

I'd like to begin with Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good afternoon, Professor Schwartz.

That was, indeed, a very clear and succinct presentation. I could have listened to more of it; that's for sure. It was certainly not all technical. It was shrouded in lots of common sense. You can have a bill that is hollow if it's not resourced properly, if other processes that feed into this particular process, once it's established, are not put in place.

I have three questions.

Would this bill be improved if there were a joint appointment process? You may have more to say about this, but I don't see anything, technically speaking, that would stop us from making that amendment to this particular bill. Maybe the political will wasn't there or people's positions were firm and fast, particularly the government's probably, and they couldn't arrive at that particular place. So we could make that. I'm not sure if that would be a do-or-die type of position for the government. I'm not sure where they are with it, but we could make that amendment. Would you see that as an improvement, and would that not invest this particular bill with establishing more trust in terms of how this could work for first nations people?

Secondly, the decision to only appoint people who are Superior Court judges limits the pool from which we can draw in terms of the tribunal members. There are constitutional experts in aboriginal law. There are professors--and maybe you are one--in aboriginal law. There are legal scholars. There are aboriginal lawyers who are quite well known and have contributed decades of time and effort who should be in that pool, but they are not Superior Court judges. In terms of enhancing the pool we could draw from, would it be a positive development in terms of Bill C-30, if something like that could be accommodated? I'd like to get a sense of where you are with that.

The other thing is about the awards. You say that prior to something being referred to the tribunal, you can engage in negotiations. You can be very creative about what types of settlements you can have. There could be land at that particular time or there may not be land. There are various forms they can take. But you also made the comment that the fact that it goes to a tribunal and you can only award cash may influence the creativity in that negotiation phase. Would the converse of that also be true, that once you hit the tribunal phase, there would be an award, and then a release that the first nation had to sign? Where would that allow for creativity afterwards, or would the pressure not come off, if you wanted to have some type of negotiation after?

I thank you.

[Prof. Bryan Schwartz]

On question one, ideally I would have preferred to see some sort of formalized statutorily established joint appointment process. And you might infer that this was a subject of candid and frank exchanges of opinion at the discussion stage. The federal government has concerns, as I understand it, because judicial appointments are a very sensitive topic. We do have very serious concerns in this country about the independence of the judiciary and maintaining the dignity of Superior Court judges, not--

[Todd Russell, Liberal, Labrador, NL]

That's why we want joint ones.

[Prof. Bryan Schwartz]

The need to be discreet and confidential.... There was a good debate on both sides. Ideally, if you could work out a mechanism that would address the federal concerns and still make it statutory, that would be better. In the real world right now, I anticipate that it would be a rather daunting task. You would have to have a commitment by the federal government to the concept. You'd probably have to go to cabinet to get instructions to do it, because the Department of Justice, at last, didn't contemplate an AFN role.

To be very frank with you, I would rather see the bill passed with what we have in terms of appointment right now than face the prospect, if it's going to turn out not to be something that can be achieved by consensus or if there turns out to be a major point of contention, of having the bill held up while we try to write in a joint process and take the risk that we don't end up with a bill.

I think the commitment in the political accord—some people are more cynical than I am about it—is valuable. You have a public commitment by the federal government to engage with AFN on a discreet basis. The remedy, if that does not take place, is that the AFN will publicly complain.

If I'm the federal government and I've just achieved a new bill that is seen as a major step forward and as legitimate and sound and done in partnership, and a few months later I have my partner complaining that I'm not playing fair, I don't think that's a very comfortable situation to be in. It undermines the political legitimacy of what I've just accomplished and it even exposes me to legal challenges.

So I am fairly optimistic that the provisions in the political accord about the engagement will be carried out in good faith. If they're not, there is the remedy of at least AFN's going public—not naming names, but just saying “we were promised this and it's not happening”, and the risk that the federal government will expose itself to legal challenges on the basis that the process will not seem to be providing a fair hearing as per the Canadian Bill of Rights.

With respect to the pool, there are advantages and disadvantages to going outside the pool of sitting judges. The disadvantage is, again, from the point of view of judicial independence. If I'm a Superior Court judge and I am appointed to this job, I'm not getting a new position. I'm still a Superior Court judge and I'm not being paid more than I used to be. If I'm on the outside and am appointed, I'm going to be paid a lot more doing this than I was as a university professor, or whatever else it is I'm doing, and I have a chance to be reappointed. Maybe subconsciously, or maybe in the eyes of some people, that's going to influence the way I act.

So you have a bigger talent pool if you go outside the judges, potentially; you have fewer concerns about independence and the worry that people are subconsciously, or are being seen to be, running for re-election if you're strictly staying inside the pool of sitting judges. I think reasonable people could argue both sides of it.

On the question of limiting the creativity, let's just say that a $100-million judgment has been awarded against the federal government. They could ask, “Where do you want us to send the cheque?” Or they could say: “Maybe there's a solution that works better for both of us: you might want the money, or what you might really want is for us to help you get a parcel of land that we can purchase for less than $100 million; or land for which we can find a way to get it for you and help you negotiate it; we have unoccupied crown land that we can work with you on, and we can designate it as a reserve.” Or maybe there are other alternatives, such as that it would be better for us, the federal government, to engage you in some sort of joint revenue-sharing project or something, rather than pay the $100 million.

Even when an award has been made against a party, it's not necessarily the end of the discussions. It could be the beginning of a new set of discussions: “We didn't take you seriously before; we never thought you'd win. But wait a minute; now we're looking at having to pay you $100 million, so maybe we should sit down to see whether there's something else we could do.”

That won't always happen. Sometimes creative solutions will not be feasible or available, and sometimes it will be “Take out the cheque book and write it”. But I think there will be a number of circumstances in which there will be creative discussions, not only before the award of money damages, but afterwards.

[Todd Russell, Liberal, Labrador, NL]

Thank you very much.

[The Chair, Conservative, Barry Devolin]

Thank you.

Next is Monsieur Lemay from the Bloc, for seven minutes.

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

Good afternoon, Professor. Thank you for being here.

Did you talk about the Guerin decision? If so, I would like to know what you said, because I have heard several things about the case, about the ruling you referred to.

[Prof. Bryan Schwartz]

That was the landmark decision by the Supreme Court of Canada that decided that when the federal government mismanages first nations' lands and assets, it can give rise to a legal remedy--that is, a remedy in the courts.

You see, before then there had been a debate: While the federal government had a trustee role, was that just a political trust? If the federal government doesn't behave properly, is it a question of their remedies being purely political? Or can you actually go to court and say that they didn't do this properly, or that they sold the land under value, or that they didn't have our permission to alienate the land, and get a legal judgment.

Guerin was the big breakthrough case. It said, in effect, that a specific claim can be brought in court and lead to a binding legal judgment.

The particular aspect of the Guerin case, which took us about eleven years to sort out, was this: In the Guerin case, Justice Dickson said that a specific claim can arise from a treaty or an agreement or even from a unilateral undertaking.

So the AFN has been trying all along to make sure that for purposes of legislation, like the piece you're studying, it's very clear that all the options are on the table. If the ordinary law of Canada would say that a unilateral undertaking gives rise to a legal obligation, then that kind of specific claim can also be brought under this system. That's not to say that all unilateral undertakings give rise to legal obligations, but if they do, you should be able to access them under this tribunal no less than in the ordinary courts.

Bill C-6 was written in a way that implicitly excluded unilateral undertakings. The new Specific Claims Tribunal Act is written in a way that I think makes it very clear. How could it be clearer? It talks about unilateral undertakings. It makes it absolutely clear that if a unilateral undertaking gives rise in the ordinary law to an obligation, then a specific claim can brought under this new system.

Concern has been expressed about Wewaikum kinds of claims, which occur when the federal government has unilaterally promised to provide reserve land pursuant to a treaty commission. It's my interpretation of the statute that to the extent that the federal government has reached a legal obligation, such as is recognized by the Supreme Court in the Wewaikum case, that kind of claim can be brought before this new tribunal.

It's a very important point, because first nations in British Columbia and other places are very much concerned that their criteria not arbitrarily exclude certain kinds of specific claims.

In the discussions going back eleven years, if you look at the criticism when I was here in front of parliamentary committees criticizing Bill C-6, it was one of the points I made. It's certainly a point we try to be alert to. Just because we participate in the drafting doesn't mean we have privileged status as to how a court is going to interpret it. But for what it's worth, my interpretation, as someone who was involved in it, is that it clearly was drafted in a way that picks up on the idea expressed in the Wewaikum case, which is that if a unilateral undertaking gives rise to a legal obligation in the ordinary courts, it can also be addressed under this statute as a specific claim.

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

We won't have much time to ask questions if your answers are five minutes long. I have the greatest respect for you, but our chairman is very strict with regard to time allotted for questions. I will therefore try to ask a brief question, and I hope that your answer will be just as brief.

You and I both know about Superior Court judges. They guard their powers jealously. Subsection 12(2) of the bill refers to a committee as defined in subsection 12(1):

12(1) A committee of no more than six Tribunal members, appointed by the chairperson, may make general rules [...]

12(2) The committee referred to in subsection (1) may establish an advisory committee of interested parties to advise it in the development of the Tribunal's rules of practice and procedure [...]

Do you believe that this provision gives first nations the opportunity to have a say in how the deliberations will unfold before the Specific Claims Tribunal?

[Prof. Bryan Schwartz]

I'll try to be extremely brief, as you requested.

This advisory body will have no impact whatsoever on how any individual case is dealt with; it will only advise on the general rules. As far as I understand, it's not unusual when a court--whether it's the Manitoba Court of Queen's Bench or the Court of Appeal--is developing its rules, to have some sort of process of public input and comment. The final say will rest with the tribunal, so I don't see any legitimate concerns there about maintaining the independence of the judiciary. The tribunal will have the final say over its own rules.

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

How do you view the place of the provinces with regard to the Specific Claims Tribunal? A province which does not have standing in a case may be, I don't dare say condemned, but in part found responsible under a claim recognized by the Specific Claims Tribunal.

Should there be an amendment which would automatically make a province a party to the action if a claim affects part of its territory?

[Bryan Schwartz]

A province will not be liable to pay any award where it wasn't a participant. If the tribunal says “This was 100% the Province of Quebec's fault and 0% Canada's”, Quebec would have every legal right to say “We don't care. We weren't there. We weren't a party to the case. It doesn't apply to us.”

If a province wants to participate, it has the opportunity to do so under the express terms of the statute. It can apply to the court, and if the province is a necessary and proper party and the province wants to accept responsibility for paying an award, the province has the right to do that. No one can force a province into this process and no award against a province will be binding against that province without the province's voluntary participation.

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

How do you interpret subsection 22.1? It reads:

22(1) If the Tribunal's decision of an issue in relation to a specific claim might, in its opinion, significantly affect the interests of a province, first nation or person, the Tribunal shall so notify them. The parties may make submissions to the Tribunal as to whose interests might be affected.

Let me play devil's advocate. If a province is asked to be part of a claim, and if that province knows that it might be liable, but really doesn't give a damn, should that province not be forced by the first nation at some point to be a party in the proceedings? In your opinion, could that province be forced to be a party? Could the province not be compelled to get involved?

[Bryan Schwartz]

I understand the provisions about intervenors to be giving an opportunity to somebody who wants to participate, and it's the same thing for a province. I don't see any interpretation of the statute that forces a province to participate ever, or that ever makes a province liable to pay a judgment if it hasn't voluntarily participated and it hasn't voluntarily said it wanted to be bound by the judgment.

I'm trying to keep it short, so my short answer is that I see no risk to the province.

[The Chair, Conservative, Barry Devolin]

Thank you.

Ms. Crowder, for seven minutes.

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

Thanks, Mr. Chair.

Thanks, Professor Schwartz, for appearing before the committee and for your very succinct presentation.

As an editorial comment, I am one of the ones who have raised concerns around the political accord, and it's no reflection on the current government in this existing political accord. My concern has always been around future governments, because we certainly have seen track records of governments, both current and former, ignoring existing political accords. That's my big concern about that.

Before you comment, I actually have a couple of questions and then I'll turn over the floor to you.

I want to come back for a minute to clause 12, around the tribunal members and this committee. I just want to be clear. Is this where you were perhaps suggesting that elders or first nations might serve as advisers to this committee in terms of looking at the tribunal rules? How might that unfold?

While you're at it, could you also talk about the fact that there are actually no deadlines for the tribunal once a case ends up in its bailiwick? I think part of the concern that we've heard raised is that unless there are substantial resources allocated, the backlog may just be shifted from one place to another.

[Bryan Schwartz]

There are several points of entry for elders under the statute, one of which is the stakeholders advisory committee. You could have elders as well as technocrats who have experience in this area. Another is that this advisory committee is going to make proposals on what the tribunal rules are. Those rules will deal with issues, for example, such as oral history. Oral history almost necessarily involves getting testimony from elders, so both in terms of shaping the tribunal rules and in terms of the tribunal rules giving opportunities for elders to participate in various ways, such as sharing their understanding of oral history, there is a lot of flexibility in the proposed statute for that to take place.

As with everything, just because it can happen doesn't mean it will happen, so that's why I respectfully urge this committee, and Parliament generally, to take an ongoing interest to see whether the commitment to this continues and whether the necessary thought and resources go into making a very promising system a reality.

The second question was what about transferring the backlog from the processing stage at the federal government and just piling it up in the tribunal, and the tribunal doesn't get its work done. I have several concerns in that respect, and again, they are things about why we need ongoing oversight.

The federal government has, in effect, rationed resources to this process. There's a maximum of the equivalent of six full-time judges, but will we even see the equivalent of six? It's not easy for the federal government to manage judicial resources. There's more demand on available judges than there are judges, so that's a role parliamentary oversight can play. There is a reporting requirement, which is clause 40, for regular reports to Parliament. Adequacy of judicial resources is one of them. Of course, you don't need only judges. You need the support judges need to get their job done: administrative support, travel, transcription, and whatever else they need. That is certainly a legitimate concern.

You need to have the resources, the full six judges in place. You need the appropriate staff, and you need rules that are adapted to getting business done expeditiously.

The rules talk about the rule-making committee looking to efficiencies. The preamble talks about resolving matters in a just and timely fashion. What I'm hoping will happen is that, when the people involved in the rules advisory committee get involved and the tribunal considers the recommendation, they're going to realize that we just can't allow this to happen. If you processed cases in front of this tribunal in the same way you did cases in front of the Federal Court of Canada, you'd get a big pile-up. Ordinary civil litigation is very slow, so again, to be effective the rules have to be drafted and adapted so that they are as expeditious, efficient, economical, and accessible as possible.

We want justice. This is not going to be some kind of second-rate tribunal, but we can find creative ways to get business done a lot faster than it would in ordinary civil litigation. At least in my view, that's what we should be trying to do.

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

You're probably also aware that I've raised concerns around the transition provisions in clauses 42 and 43. One of the concerns is over the numbers of claims that have actually been in the system for a lengthy period of time, with the transition provisions as outlined. I have concerns, and others have expressed concerns as well, that people who have been in the process for a number of years may be disadvantaged. I wonder if you could comment on ways that we could tighten that up or ensure that people who have been in the system for a lengthy period of time aren't disadvantaged.

[Prof. Bryan Schwartz]

There is provision for fast-tracking certain claims that have already gone through the Indian Claims Commission process. Beyond that, it is one of those debates about a larger roster or a smaller roster, where reasonable people can argue it both ways. Some would say to prioritize claims that have been sitting there a long time. Others say, “Well, wait a minute. These claims at least got some attention. What about my claim? I never got any attention, so why should a claim that has already received ten years of attention take priority?”

With the exception of that one fast-track route for claims that went to the ICC, the drafters of this legislation have largely left it to the tribunal to decide what the priorities will be. There is some wisdom to that, and I say that with great respect for some people who would have different priorities, but my view is that everybody has a pretty good case here, and probably the best way to decide is not to have the AFN decide or the federal government decide but leave it to the independent tribunal to decide.

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

That might be a tough sell for somebody whose case has been before the Department of Justice for ten years. That certainly warrants some consideration.

The other thing you talked about was alternate dispute resolution. Again, the minister and certainly any of the language we've heard about it have been relatively vague around the resources that will be applied to the mediation, and of course there is a track record of the federal government not engaging in the mediation process. I wonder if you have some recommendations on how we could make that particular piece more effective and more accessible.

[Prof. Bryan Schwartz]

It's one of the issues that's supposed to be discussed at the joint liaison and oversight committee. I think you very well expressed what the concern is.

I don't think mediation works very well unless you have some sort of compulsion at the end of it, such as binding adjudication, but we have that now. Having that, you need resources available for mediation at both levels, the negotiation stage and the stage in front of the tribunal.

What I would suggest, and what I've tried to make one of my themes in all things, is that while the statute is a tremendous achievement, there's a need for ongoing oversight by committees like yours to see if this is actually becoming a practical reality and that the resources are there.

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

I think the resources are a big issue.