Indigenous and Northern Affairs Committee on April 2nd, 2008

[Prof. Bryan Schwartz]

Despite being an academic, I like to think I have a glancing contact with reality, and the reality is Justice at Last put a $150 million cap. That was the cabinet decision. It's a much higher cap than we were talking about in Bill C-6. Of course, in principle I would prefer to see no cap. I was part of the 1998 joint task force report that said no cap. The reality.... Do I see any realistic possibility that the federal government is suddenly going to say they were just kidding about the $150 million cap, and there's no limit? It would be great if that happened, but I don't see it as very likely to happen, and I would regret it if the bill were jeopardized because that was the sticking point when we knew going inthat this was the federal government's position.

I'd like to see the emphasis placed on how we are going.... In the real world there is going to be a limit; it seems inevitable. So how do we make sure that claims above the cap are dealt with fairly until it can be revisited within the next five years?

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

But in all likelihood, the fact that there's a cap will expedite the resolution of claims below the $150 million, and there is still this other avenue with cabinet jurisdiction to deal with the ones above that.

[Prof. Bryan Schwartz]

Yes, but there are legitimate concerns, which I certainly share, about equitable treatment of claims above the cap. How do we know enough resources will be devoted to them? How do we know they won't lose out in the competition for resources with claims below the cap? Do we have enough clarity about whether the federal government will not use technical defences to defeat claims above the cap?

So this is a very serious issue from my perspective, as it is certainly from the point of view of the Assembly of First Nations and those claimants who have claims above the cap. I don't think they rest easy that not having access to the tribunal, they're in okay shape. To make sure they're in okay shape, there is going to have to be continued political energy, continued engagement with the federal government, so that in the interim, until the legislation is reviewed--and there is a review after five years--there can be reasonable assurances that large claims will be dealt with equitably and work toward the eventual elimination of the cap will be carried out.

It often happens with institutional developments that you do it incrementally. The WTO used to be advisory. Now it is legally binding. If we can get confidence that the system works with claims up to $150 million, maybe next time around we can get rid of the cap altogether, but I'm just speaking frankly. I can't see it as a realistic possibility that the cap is going to disappear this round.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

I want to go on to another point you made regarding the advisory committee. This has been discussed by various witnesses as well.

You indicated that the advisory committee would have input to the tribunal as it adopts its rules, and then you made a statement to the effect that there will be an informal set of rules, possibly adapted, and I haven't often heard “informal” and “rules” in the same sentence. Could you clarify how that will work? Is that going to deal with some of the cultural, spiritual, and traditional values that might be part of settling these claims?

[Prof. Bryan Schwartz]

What I'm talking about are the formal rules of the tribunal that permit procedural informality.

For example, one way you can have evidence is to have everybody physically present in the room at the same time. Another way you can get evidence is to videotape it. If you have elders who might not be around in a number of years, videotape the element, cross-examine them in a respectful way now, and preserve it. You can have evidence by teleconference, you can have evidence by telephone, you can have affidavits. You don't have to sit regular court hours. You can sit longer hours. You can do evenings, you can do weekends. You don't necessarily have to have the exhaustive pretrial process that you have in formal litigation.

So by informal, I certainly don't mean unfair or irresponsible. When arbitrators decide cases--and I do some arbitration myself--rather than the courts, there are a lot of ways in which we try to speed things up and make them quicker and more economical when compared with formal court processes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you.

Monsieur Lemay.

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

I have two questions. The first one is very short. Do you believe that the bill should be amended in one or several places to make it better?

[Prof. Bryan Schwartz]

No. There are a lot of amendments I'd like to see, but there are no amendments that I would consider necessary for us to come out of this and say that this was a landmark achievement.

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

Fine.

In Quebec, Superior Court judges have established rules of procedure. We call them rules of practice. Lawyers must follow the rules of practice to file... I think it's the same in Manitoba and elsewhere in Canada.

I think there should be something else in the bill. Should there not be a mandatory mediation process? I believe my colleague mentioned this. I was just wondering. Under this process, elders could be consulted and an advisory group could be created before a claim is brought before the judge.

So would it not be a good idea to have a mediation process before the final hearing of a claim?

[Prof. Bryan Schwartz]

Mediation can be extremely useful. The bill provides for it at the initial filing stage and provides the opportunity for it at the tribunal stage.

If the question is mandatory, there are different views. I'm of the school that says mediation should never be made mandatory, because it doesn't work if somebody is being forced into it. Other people have a different view, but I really don't see how a process, if it's based on goodwill and working together, can work if somebody is dragged in kicking and screaming and doesn't want to be there.

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

I was present at the hearings on bill C-31 regarding the appointment of additional Superior Court judges. At that time, I asked the Minister of Justice whether selection criteria for Superior Court judges should include a knowledge of aboriginal issues or claims, not necessarily for inclusion in that bill, but in future legislation. Lawyers wishing to serve on the Superior Court should at least have some basic knowledge of aboriginal affairs. The current judges who will enforce Bill C-30 don't have any knowledge of native issues.

I would like to know what you think about that.

[Prof. Bryan Schwartz]

I think an effective judiciary means that you have a strong team. You need people who know a lot about business law. You need some people who know a lot about aboriginal law.

Should everybody know about aboriginal law? Not necessarily. But if you have enough people on each provincial bench to whom you can assign cases, then that's an extremely important asset for every team to have.

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

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

Mr. Storseth, you're next, please.

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

Thank you very much, Mr. Chair. You will get my name right yet, Mr. Devolin.

Mr. Schwartz, I want to thank you very much for coming forward today. This is by far and away some of the most concise testimony we have received. You've done an excellent job answering a number of questions, so I will keep my questions relatively short.

First of all, I would like to start with the political agreement and I guess maybe just a comment by myself. What I've heard from first nations chiefs from Saskatchewan to Alberta and all over this country is that this is one of the highest-level agreements they've seen between the Government of Canada and first nations communities. I think that's something that definitely needs to be recognized in here.

[An hon. member]

Hear, hear!

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

There's been a number of questions that have come forward in this committee. You've addressed a little bit of it today already, but I want to set it out clearly. It's been said a number of times and I'd like your answer on it. A number of times there have been questions or even comments made around this table that this process will set the clock back to zero for all these claims and that everybody is going to have to start over again, and that's one of the big reasons we need to make sure we don't go forward with this. What are your comments to that?

[Prof. Bryan Schwartz]

It doesn't set anybody's claim back as though it had never been filed. It is true that, for the purposes of the three-year clock, even if they've been in the system for ten years, some of them are going to have to wait for the full three-year clock to run out.

The difficulty with any kind of prioritization is inherent in the concept of prioritization. Suppose we had made a collective decision, first come, first served, that the oldest claims get considered first. Other people would have said, “The oldest claims got the most funding and the most attention already, and some of them were rejected. Why do they get priority over somebody who has never had their day in court?” There was no value-free way of determining how to prioritize it.

We selected one particular category, which was claims that went before the Indian Claims Commission, recommended positively but rejected by the federal government. They get fast-tracked. But for the rest of them, different people will have a different normative sense of who should get priority, so we basically left it to the tribunal.

Maybe I'm missing something here. Offhand I'm not aware of anybody who is actually in worse shape than they were before. You can have people saying “I wish I was in better shape. I've waited for twenty years; why should I have to wait maybe one, two, or three more years?” You could say this could be better. But are those people worse off than they were before? Under this bill I don't see that. People with large claims can say “I don't have access to the ICC any more and I did before, and that's going to disappear in a year”. Again, that's a reason to pay special attention in the political agreement to making sure the large claims are dealt with, largely. There's a difference between saying “I wish this gave me more priority” versus saying “I'm actually cast backwards”. I don't see people being cast backwards.

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

You talk about the prioritization of this. Are you comfortable with the framework that's been set forward with that?

[Prof. Bryan Schwartz]

Different people have different views. My own view is that leaving it the independent body to determine the prioritization was the appropriate way to go. Otherwise, without having everybody in the room, you've got AFN and the federal government deciding it's oldest claim first, or the biggest size claim first, or representative claim first. It would seem to me problematic to have prioritization done by AFN or the federal government rather than by the independent tribunal figuring out its own priorities.

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

Thus removing the conflict of interest.

Thank you very much. That's as good as I could have asked for.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

We have two more questioners in this round, Ms. Crowder followed by Mr. Warkentin.

Ms. Crowder, five minutes.

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

Thank you. Actually my questions will be relatively brief.

I wonder if there has been any analysis that you're aware of around the numbers of claims that could be impacted if the provinces decide not to come to the table. I'm from the province of British Columbia, and up until fairly recent years the province of British Columbia had refused to come to the table, up until the early 1990s. I just wondered, because that could have a significant impact on the claims.

The other one is more of a philosophical issue. Mr. Penikett, who came before the committee the other day, didn't specifically mention this when he was at the committee, but he's written a book called Reconciliation, where he recommended that the use of alternative dispute resolution techniques and bringing mediators to treaty tables should be encouraged. He also suggested that first nations be allowed to litigate disputes when necessary, and it shouldn't necessarily pull them out of the process. I wonder if you could comment on that. I know there are times when it's important to get a court decision on a particular aspect of a negotiation, but it doesn't hinder the rest of the negotiation going forward. But that really hasn't been the way it's been handled.

[Prof. Bryan Schwartz]

I haven't seen the statistics on the provinces, and I don't know whether anybody has actually compiled them. I believe there will be many cases in which claimants will not be able to get full satisfaction of their injustice because the province wasn't there.

However, no federal government to date has been willing to entertain the prospect of forcing provinces against their will into participating in the process. It's another respect in which you could say that by some standard of transcendental perfection “it would be better if”. It would be better if all the provinces agreed they were going to be there for all the claims, but that's not the real world.

I think the fact that you've seen every federal government take the same view about taking a restrained approach to trying to force provinces into the forum means that this is the nature of the constitutional and political reality we're working with.

It will have a significant impact, but in many cases it won't; in some cases, at least the band will get partial satisfaction, if not complete.