Indigenous and Northern Affairs Committee on April 2nd, 2008

[Prof. Bryan Schwartz]

Yes, they are.

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

Do I still have time?

[The Chair, Conservative, Barry Devolin]

Be very quick.

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

Just really briefly, could you come back to the tribunal makeup? Do you see any option at all for having more than just judges? I don't mean “just” judges, but more than judges.

[Prof. Bryan Schwartz]

The joint task force report, which I was party to, recommended that it be an ordinary administrative tribunal, with people appointed for that particular purpose. It's an arguable position.

I actually do see some merit to the judges-only approach. You will thereby have people who are trained, who know how to do this, who have track records. It reduces the risk that people are going to say, well, that's just a patronage appointment and you got this gig because you're connected with this person or that person. Again, reasonable people could argue both sides of it.

Do I think that's worth potentially sidetracking this bill to go to some other model at this stage? My view is no. The judges-only model is not the only one, and maybe it's not even the theoretically best one, but it's not a bad one. In my view, if it's going to be controversial, it's not something on which the government would immediately agree to some other model.

It's just my view, and I'm not speaking on behalf of the organization, but I do have a sense of urgency and real concern that if this doesn't get passed now, because somebody has an idea about how you can make something that is already good even better, we could end up losing the whole thing.

[The Chair, Conservative, Barry Devolin]

The last person in the first round is Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

Thank you, Professor Schwartz.

If I were a lawyer and at trial, I might offer up the statement “case closed” after hearing your testimony. But thankfully I'm not a lawyer, and I do appreciate much of your testimony. I must say that much of what you have said we have also heard from witnesses from the AFN who took part in this negotiated agreement in drafting this bill. So your testimony has lined up well with the testimony of others who took part in this bill. Clearly you have an intimate knowledge of the drafting of this bill. I must say, you would do a better job at describing its key parts than I could, so I'm glad you're here today.

Of the few areas I wanted to touch on, I appreciate your talking about the independence of the tribunal, specifically in relation to the appointment of judges, because I know that point was raised by some of the parties involved in the drafting of the bill. The government side, of course, feels that having judges provides a key element of independence. These are individuals who have given up all partisan politics; they're individuals who endeavour to strive for pure independence. Of course, that's an ideal or utopian thought, which perhaps can't be achieved, but in theory that is what is attempted by the judiciary. In essence, I think you've stated quite correctly that this is the right approach, though you have offered the other arguments that were on the table as well.

Going to the idea of unilateral undertakings, though, you talked about your interpretation of what might be considered a unilateral undertaking. Would that interpretation be up to the Superior Court judges who are going to be appointed? And if there were a disagreement as to what a unilateral undertaking was, or should be considered to be, could another judge perhaps intervene to argue a case for a specific unilateral undertaking?

[Prof. Bryan Schwartz]

The initial interpretation of phrases like “unilateral undertaking” will be made—if it gets to the tribunal—by whichever judge is appointed to hear that particular case. If either side disagrees with that, they have access to judicial review. That means that a three-member panel of the Federal Court of Appeal will decide whether the interpretation made by the initial judge was unacceptable. I say “unacceptable” because there's always a debate about reviews of other people's judgments, about whether you made a decision because you agreed with it or because you just thought it was reasonable.

So I won't go into all of that detail, but suffice it to say there is access to a higher level of review, the Federal Court of Appeal, and leave from that can be obtained in the Supreme Court of Canada. In controverted cases, if you kept having problems about what unilateral undertakings mean, eventually you would get opinions not only from tribunal judges, but also from the Federal Court of Appeal and ultimately very likely from the Supreme Court of Canada.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Schwartz, this piece of legislation was, as I've already said, negotiated between the federal government and the AFN, something that was done privately, in confidence, up until, of course, the moment that it was announced and of course was ratified at a December meeting of chiefs here in Ottawa.

So my argument or my question to you would be whether this bill, in essence, should be able to proceed largely without any amendments to it, due to the fact that it did receive that unanimous ratification at the Assembly of First Nations and of course does have the endorsement of cabinet. To go with substantive amendments at this stage would perhaps call for further ratification by the AFN assembly and, as you've already referenced, further endorsement at a cabinet level.

I guess my question to you would be whether you see that as perhaps one of the best reasons for proceeding without any major substantive amendments.

[Prof. Bryan Schwartz]

There are a couple of points. The detailed negotiation of the bill was done on a confidential basis, with occasional reporting on the broad picture to the constituency Assembly of First Nations. But I do want to take pains to say that you have to see the bill that emerged as the result of a much larger and very public process.

This bill bears heavily the trademarks, for example, of the 1998 very public joint task force report. There have been many Assembly of First Nations resolutions supporting the creation of a specific claims tribunal, some criticizing Bill C-6 and identifying what was wrong, others urging it.

So we did have a confidential period, to some extent, but that is not to say that this whole thing suddenly emerged out of a private confab. There is a much larger and very public process into which that's placed.

The importance of the AFN being involved is in several respects. First of all, a point I've tried to make is that I think one of the reasons the bill is so sound is that--and you compare that with the unfortunately not so sound features of Bill C-6--when you have the Assembly of First Nations in the room with all of the experience and knowledge and legitimacy that it has, it's not only a question of going ahead and signing it because two parties agreed. One of the reasons it is a good bill in the first place is that the AFN is very substantially involved. There is a real partnership, because it was not only vetting federal proposals but creatively contributing to it.

The second point is that if you have people negotiating and making trade-offs, then there's a certain element of fairness to saying okay, this has come out of here, and you can't go back and try to re-argue the points where you already made compromises. But that's AFN and the federal government. I wouldn't say all of a sudden it's out of bounds for anybody in the country or any first nation to say they have a different view and we missed something, and that this is fundamentally wrong and they don't agree.

I think it would be overstating it to say that the mere fact that two parties agree somehow makes it absolutely immune from criticism or that you could never conceive of an amendment. It is possible that we might have missed something, that we made a technical error, or that some people might just say they don't agree with the philosophy of this, and they have the right to voice their opinion.

But I do think it's a factor in favour of expeditious passage that this was the product of a partnership with the AFN. I do believe--I know I work for them, I consult with them, so maybe I'm somewhat biased in that respect--that if you read the testimony and you look at its role among first nations, AFN has a high degree of legitimacy in general and on this particular file in particular. And that, as well as its intrinsic merits, gives some further credibility to the product.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I would agree with that wholeheartedly.

Just further to your other comments in relation to the current electoral situation that this House of Commons finds itself in, of course should there be an election, all of this work gets set aside to a future mandate, a future Parliament. Of course I know it would be a shame to see this bill die.

I want to go to another point that was mentioned.

[The Chair, Conservative, Barry Devolin]

Do so quickly.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I'll be quick.

I would perhaps just want to talk a bit about the role of the elder that was contemplated by the AFN. I know you spoke a bit about that. Could you give us a little more testimony about how the AFN would envision the elder taking part in the tribunal?

[Prof. Bryan Schwartz]

I'm not so sure the AFN has made any specific proposals about being part of the tribunal. I don't think it has made any suggestions one way or the other on that in the sense that you would not only have a judge deciding, but somehow you would have a panel of elders being a consultative resource.

I'm not taking a position on that particular issue one way or another. I'd have to think about it. I'd have to see what the specific proposal is.

I do see a lot of more familiar points of entry for elders to be involved. One of them is with respect to oral history. The statute and the rules should provide ample opportunity for elders who want to contribute oral history to provide the evidence. It should recognize that elders are elder, and therefore, in a litigation process that may take six years, you may need methods of preserving evidence in the event that they're not there when the case finally reaches trial. If you're going to have negotiations, the ADR body can look at the importance of having elders involved when you're negotiating a claim rather than before the tribunal. The elders can be among the stakeholders who participate in the committee that advises on the rules. There are all kinds of points of entry here.

I don't have enough of a sense in my own mind of what people have in mind when they talk about elders actually being part of a panel, to have a very focused reaction to that.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Okay. Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you.

Colleagues, we do have time for a second round today. It's going to be five minutes, and I'll be a bit tighter on the time in the second round than I was in the first.

Ms. Karetak-Lindell.

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

Thank you very much.

Thank you, Professor Schwartz.

I'm going to carry on with some of the same questions that my other colleagues were asking on the one-person tribunal. I'm trying to see what the difference is.

Some of the opposition against, as you say, Bill C-6 was that the minister had unilateral decision-making on issues, and that's always the case every time we have legislation where the minister has too much power. So I'm trying to see what the difference is with a one-person tribunal making a decision, what makes that easier to swallow than one minister making a decision. But maybe that's a political question.

The more I hear about this—and I did attend the briefing and have read the material—I'm trying to see what the difference is from a core process, because it has a judge sitting there, but without the appeal process. I'm trying to see what the big difference would be in this being away from an adversarial court case. When you were doing those discussions, the confidential ones, were there any discussions on an alternative process?

When a person goes to court, I don't know much about the judicial system, but you have an option of being heard by a judge only, or a judge and jury. Would that be making it too close to a court process?

Just to go into your comments that working together makes for a better bill, I can't resist saying that's what we should have done in the process for repealing section 67. We probably wouldn't have spent so much time on it at committee.

[An hon. member]

Hear, hear.

[Prof. Bryan Schwartz]

Thank you.

Concerning the difference between Bill C-6 and this in terms of one person, the issue isn't only one person. The issue is a highly self-interested person versus an independent, impartial person.

With Bill C-6, the idea was that the minister had unilateral powers. The minister who was defending the claim had the power under the bill to hold up consideration of the claim indefinitely. That's an elected official deciding a liability claim against his or her own department. That's a very different proposition from an independent judge making the decision.

Are three heads better than one? Generally speaking, yes; the social science seems to be—

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

I guess the point I was trying to make was when is a unilateral decision easier to take? I guess it depends who that unilateral person is. That's what you're saying.

[Prof. Bryan Schwartz]

Yes, and the institutional setting. Are they independent? Are they impartial versus being a self-interested person? But the trade-off is that three people generally have more wisdom than one person has, just as thirty have more than three.

There is, however, a very severe counterbalancing practical consideration. If you have a three-person panel, unless you triple the resources the federal government is going to be putting into it, which is almost inconceivable.... It's hard enough to spring six full-time judges; springing the equivalent of 18 full-time judges when there are demands across the country I can't see that as a practical option. Also, you're going to move at the pace of the least accessible member of the three-person tribunal, right? If you've got one person you're working with one schedule. If you've got three people you're working with three schedules. If anybody gets sick or tied up with another trial, all of sudden you've got a problem. The deliberations will take longer because they've got to work out their concurrent judgment or somebody has to disagree and write a dissent.

So there is more collective wisdom in three than one, and there's more efficiency in one than three. But this is not absolute dictatorial power, because it is subject to judicial review and there is somebody looking over your shoulder.

[The Chair, Conservative, Barry Devolin]

You've got twenty seconds if you have a really quick question.

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

I don't think I can do it.

[The Chair, Conservative, Barry Devolin]

Thanks. We'll bank that for you.

Mr. Albrecht, you have five minutes.

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

Thank you, Mr. Chair, and thank you, Professor Schwartz, for being here.

I noted your comment in your opening statement that outstanding lawful obligations should be addressed, and I think we can all agree around this table that all Canadians, both aboriginal and non-aboriginal, agree with that.

I wanted to confirm your comment about the urgency, especially considering the fact that we're in a minority Parliament, and you indicated we should try to have this through the Senate by the end of May. I think that would be great.

I would like you to comment on the potential for amendments. A number of the witnesses who have appeared here have suggested that the $150 million cap is a huge impediment. Would you encourage the committee to proceed without considering that amendment proposal?