Indigenous and Northern Affairs Committee on April 2nd, 2008

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

Let me say on the record, I'm not at all suggesting that the federal government force provinces. I just wondered how many applicants could be impacted if the province weren't coming to the table. I just want to be clear about that.

[Prof. Bryan Schwartz]

In terms of whether negotiations should be interrupted if you want to get a specific point resolved, just as a philosophical matter that seems pretty sensible to me: you can have twenty issues on the table but one is the sticking point; should you have to hold up everything or have everything stop while you get that sorted out? That doesn't seem like a very sensible way to process. Usually parallel processing gets things done faster than moving at the speed of the slowest obstacle.

To the extent that people are involved, whether in compensation claims, specific claims, or resource management litigation, if there are ways we can devise such that well-confined individual points can be referred to courts and resolved quickly, that seems like a pretty solid, practical idea.

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

Doing that could be a recommendation that this committee could make. There are many cases, of course, where once the first nation decides to litigate, all other negotiations cease.

[Prof. Bryan Schwartz]

As described, this philosophical concept seems perfectly sound to me.

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

Thank you. That's all.

[The Chair, Conservative, Barry Devolin]

Thank you very much, Ms. Crowder.

Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

I appreciate Mr. Schwartz's testimony this afternoon. I think most of the questions have been answered. Your information has been helpful for us.

Could you contrast this piece of legislation with Bill C-6, which the Liberals had been bringing forward to address some of these same concerns? I'm wondering whether you have the ability to contrast this piece of legislation with that.

[Prof. Bryan Schwartz]

Very quickly, on the question of independence, Bill C-6 was fundamentally flawed. It was actually statutorily biased in favour of the federal government. It gave the minister a say in appointments and gave no say to the AFN.

With respect to delay, Bill C-6 actually statutorily protected the right of the minister to indefinitely delay consideration of the bill. That's a kind of negative way of looking at it. It wasn't as if they were saying they wanted to block claims indefinitely; it actually said that you can never go beyond consideration, if a minister has said he's still considering it. The delay issue was not adequately addressed in Bill C-6, and there were no time checkpoints such as we see now.

In terms of criteria, the problem with Bill C-6 is that it didn't deal adequately with the problem of unilateral undertakings. And there were some questions of a very technical nature dealing with whether it adequately dealt with pre-Confederation claims.

As to monetary jurisdiction, we were talking about $7 million to $10 million with Bill C-6; we're talking about $150 million now.

So if you look at the big-ticket items, Bill C-6.... I'm on record with an opinion I wrote in 2002 that was very negative about Bill C-6. You can see my opinion about this one. I'm not enthusiastic about this bill because I'm an easy sell; I think the merits of this bill are much stronger than those of Bill C-6.

Maybe, with the wisdom of history, Bill C-6 was a necessary exercise to go through to finally get to the right decision, just as there are sometimes false starts before you get there. I'm not trying to be unduly critical of earlier efforts. Whatever intentions were, it didn't work.

This one has learned some lessons—everybody learned something from the Bill C-6 experience—including those shown in the amendments that were put forward at the time, and now I think we actually have a solid product.

[Chris Warkentin, Conservative, Peace River, AB]

I appreciate that. My concern, at least, and I know I share it with my colleagues around the table, is that at the end of the day we get faster action and actually get some of these claims resolved. So often, as we travel our constituencies or into aboriginal communities, we hear that there have been ongoing negotiations or ongoing problems for generations. Quite frankly, as we see the numbers continue to escalate, it's important that we see a resolution.

So I appreciate your sense that this will indeed speed up or at least that there will be some movement of these cases forward.

We've talked about this at some point this afternoon, but I'm wondering what your feelings are with regard to whether taking up and resolving these issues that fit within the specific claims legislation will free up departmental resources for the larger claims. There's been some concern that it doesn't include all claims, but I'm wondering what your feeling is about the ramifications or the impact it will have on some of the larger cases, if in fact this new framework deals with anything that's specified under the specific claim provisions.

[Prof. Bryan Schwartz]

With respect, I don't think this bill is going to free up resources to be used for other things. I think you need an aggregate increase in resources. What this bill will do is put demands on the justice department and INAC that they never had before. They have to turn around and decide claims within three years or face having it go to the tribunal. So there has to be an increase in resources.

There can also be better systems management. You don't always double efficiency by doubling resources. Sometimes you can work smarter rather than just increasing the resources.

I don't see this as quickly freeing up resources to focus on comprehensive claims and other things. I think what you need is more resources. I know everybody always thinks their interests should get more resources, but this has certainly been a neglected area. We do have a backlog of a thousand claims. The comprehensive claims process also tends to be mired.

I do think this will be an investment. If the investment is there, if there's follow-up, I do think it will produce results, and we will see significant progress toward stopping the backlog from increasing and eventually reducing it. There was a process lesson learned here actually, about how people could cooperate to produce a potentially very effective system that could be applied to other areas, including treaties, including comprehensive claims.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you very much.

[The Chair, Conservative, Barry Devolin]

Thank you.

Before folks jump up, we're a couple of minutes ahead of schedule. Ms. Keeper has one question she'd like to ask as well.

[Tina Keeper, Liberal, Churchill, MB]

Thank you.

This is a question on adequate resourcing. You just mentioned that if a claim is filed and the minister has three years to accept or reject it, and if the first nation does not hear back from the minister, then it is deemed rejected, right?

[Prof. Bryan Schwartz]

You're allowed to go to the next stage, yes. It's constructive rejection.

[Tina Keeper, Liberal, Churchill, MB]

Right. So has the resourcing of that move to the next stage been adequately addressed, in your mind?

[Prof. Bryan Schwartz]

No, I don't think the question of whether there will be adequate budgets for any of these stages has been worked out yet. Now, I don't know what's going on in the inner recesses of the federal government. Maybe the game plan is there, and the money is there. I'm just saying from what I know to date, there are going to be very serious resources needed. There's going to have to be an engagement with the Assembly of First Nations and oversight to make sure those resources are available.

Where I am is that this bill is a landmark achievement. Whether it will succeed or not depends on whether there continues to be the intellectual energy and the bureaucratic commitment and the political will and the financial resources to make it happen, and I'm not confident about that point. The potential for a great success is here, but we could end up with....

I've been on a tour of a major university where someone has said “See that building? It's empty, because donors like to contribute the building. They want the building. They want their name on it. But try to get donors to pay for the operating costs.” That's the situation we're in. We have this magnificent new building. It could be even better. It could be ten stories rather than seven, but it's an impressive achievement. Whether this building is actually going to have activity and operate and be successful depends on this further commitment of all kinds of resources, ideas, bureaucratic attention, political attention, and money.

[The Chair, Conservative, Barry Devolin]

Thank you, Professor Schwartz.

I began today's meeting by offering apologies to my colleagues that our scheduling is a little lumpy this month, but in hindsight, I think having just the one witness here today and having some time to actually explore some things in detail has been enlightening for all of us.

Ms. Crowder.

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

Just really quickly, I noticed in our schedule.... I think there's a subcommittee coming up, and this may be more appropriate there, but I just wondered if there'd been any thought given to scheduling the department to come back as well at some point. It would seem after all of this testimony that it would be a good idea to hear back from them for some technical questions that we might have.

[The Chair, Conservative, Barry Devolin]

I would be happy to talk to you about that. It hasn't been considered. We have our meetings scheduled from now until the break. The logic was to try to finish the witness testimony before the break, ending with Chief Fontaine, so that if members wanted to work on amendments during the break, they could, and we could come back to clause-by-clause.

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

Towards the end, when we have the AFN, if there were a meeting in which we had only one witness, it might be possible to have them come in for the other half of the meeting, then. I think there are some technical issues that have arisen that the department would--

[The Chair, Conservative, Barry Devolin]

I'm not saying yes or no. I'm saying it may be possible.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Mr. Chair, as you know, we at this committee have gone through the clause-by-clause period before. The department comes before us and are open to any questions we have during the clause-by-clause process, so they will be available at that point in time.

[The Chair, Conservative, Barry Devolin]

Thank you. I appreciate your reminding me of that.

The meeting is adjourned.