Indigenous and Northern Affairs Committee on April 9th, 2008

[The Chair, Conservative, Barry Devolin]

Good afternoon, and welcome to the 23rd meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today we are continuing with our hearings on Bill C-30, an act to establish the Specific Claims Tribunal and to make consequential amendments to other acts.

I have a couple of quick housekeeping notes. As I've said a couple of times recently, we have a few meetings this month with only a couple of witnesses and a couple of meetings with many witnesses. Today we're going to have many witnesses and many presentations, so we're going to need to move along briskly in order to get done.

We have two panels. There will be three presentations from each panel. The presentations will be severely limited to ten minutes. In fact, I'll give you a one-minute warning. So at some point I'll chime in and just say “one minute”. You don't need to stop, but that's just to let you know, and that is because we have one hour, and we need to get through three of these presentations. We'll have time for only one round of questioning, and I'm thinking that five minutes for each questioner will be all we will be able to do. That's because we have bells at 5:30 today for votes, and we have many votes tonight, so I'm going to try to get through both of these panels in one hour each.

With that, I'd like to welcome our guests here today: Christopher Devlin from the Canadian Bar Association, Kathleen Lickers from the Indigenous Bar Association, and Alan Pratt from the Alan Pratt law firm.

As I said, you could give us a presentation of ten minutes or less, following which we will do a round of questions, and the individual members will be able to direct their questions to whichever of you they wish.

I'd like to begin with Mr. Devlin. Welcome. You have ten minutes.

[Christopher Devlin, Former Chair, National Aboriginal Law Section, Canadian Bar Association]

Thank you very much.

Good afternoon, members of the committee.

I'm here on behalf of the Canadian Bar Association National Aboriginal Law Section. We're pleased to be here to present our views on Bill C-30.

The CBA is a national association of over 37,000 law students, lawyers and notaries, and legal academics. One of the aspects of the CBA's mandate is improvement in the law and the administration of justice. It's under that objective that we're appearing before you today.

I understand that the committee has had several hearings already on this bill. I don't intend to do any background information on Bill C-30. I've read some of the evidence summaries, and it's been quite extensive.

The CBA is making nine recommendations to this committee, and I intend just to touch on them very briefly in these opening comments.

First of all, the CBA National Aboriginal Law Section supports Bill C-30 generally. It's a long-overdue law reform to the existing specific claims process; however, in the interests of law reform, we think there are a few areas that need to be improved. We'd like to present recommendations concerning these to the committee today.

Our first recommendation deals with the power of the Specific Claims Tribunal to issue final and conclusive decisions for compensation respecting claims. I'm referring to sections 14, 17, 20, and 34. Subsection 34(2) is a very strong privative clause. Section 34(1) allows decisions of the tribunal to be subject to judicial review, but then subsection 34(2) is this strong privative clause.

Other witnesses before you have raised a concern with the inability to appeal decisions of a tribunal panel. What the CBA is recommending is that as with other specialized administrative tribunals there be some kind of internal review process. The judicial review function is important, but certainly, as some of us know, judicial review is subject to a much higher threshold for overturning the decision being reviewed. What we're recommending is that, not unlike the Immigration and Refugee Board or like provincial worker compensation boards, the tribunal have some second level of review, internal to the tribunal, so that if there are errors of a particular judge they can be caught internally, and then, of course, there would be a judicial review.

The second recommendation we have really goes to the limits of jurisdiction. We have three recommendations under that heading.

We have three concerns with the proposed limits on the jurisdiction of the tribunal. The first is that the tribunal is only limited to awarding financial or monetary compensation. You've heard extensive evidence on this already. I'm not going to belabour the point.

The specific concern we have with respect to not allowing the tribunal to consider issues of land and to make determinations on land is that there is certainly at least one whole category of specific claims, treaty land entitlements, that are all about land. At the negotiating table—when Canada is negotiating with first nations on treaty land entitlement claims, as an example—land and cash is always on the table. You've heard some witnesses, particularly out of Saskatchewan, say that rarely is land on the table, that it's always cash, but in other provinces—certainly the ones I'm familiar with, Alberta and British Columbia—there's always a land portion and a compensation portion.

The tribunal is supposed to be making final determinations of these specific claims, so the CBA believes the tribunal should have jurisdiction to, in the very least, make declarations respecting the land quantum that Canada should provide or that is the lawful obligation Canada has to the first nation, and also about the nature of those lands, what kind of lands the first nations would be entitled to. That would play into the determination of any compensation Canada would provide to the first nation and is definitely something that should be within the tribunal's jurisdiction.

We note that although Canada has not adopted the UN Declaration on the Rights of Indigenous Peoples, compensation can take the form of land and is properly within the spectrum of indigenous rights. We feel that this also should be within the tribunal's purview.

Our second concern, on the limits of jurisdiction, is with respect to harvesting rights or land-use rights, and that's under paragraph 15(1)(g). This provision appears to be directed at treaty rights, such as hunting, fishing, and trapping. While the CBA is not suggesting that present use-of-land rights be subject to the Specific Claims Tribunal, there are historical grievances that should properly be specific claims that the tribunal can hear. The example of that is the imposition of provincial trapline registration systems back in the 1920s and 1930s, which essentially obliterated the traditional traplines of first nations. Of course, the traditional traplines of the first nations were protected as treaty rights under their respective treaties. So those sorts of historic grievances related to rights should fall under the jurisdiction of the tribunal. We have that as our second recommendation under this section.

The third one is a very specific one, and it refers to paragraph 14(1)(c), and that refers, with respect to Canada's obligations on reserve lands, to unilateral undertakings that give rise to fiduciary obligation in law. The CBA aboriginal law section notes that often there's a dispute among first nations in Canada as to what constitutes a fiduciary obligation. Sometimes there may well be a legal obligation there, but it's a difference of opinion as to whether it meets that higher threshold of being a fiduciary obligation. In that respect, we would recommend that the word “fiduciary” be deleted from that paragraph so that what we're talking about are obligations in law.

The committee has heard extensive evidence on limits to the tribunal's monetary jurisdiction. The CBA would like to add to that the concern about the arbitrariness of that monetary limit. However, the specific concern is this: relatively straightforward claims that, but for the passage of time, would pass that $150-million threshold should be subject to the tribunal's jurisdiction.

What I mean by that is referenced to the recent Whitefish Lake First Nation decision of the Ontario Court of Appeal. When we're talking about the application of arithmetic, of equitable compensation that allows compensation to first nations to bring the loss-of-use forward from the late 1800s to the early 21st century, if it's an otherwise straightforward claim--it's not complex, it's not a bundled claim--the tribunal really should have jurisdiction over it. It's not a huge issue of law. It's only by virtue of the application of arithmetic that you'd see the actual compensation exceed the $150-million mark. We say that there should be a provisional cap of $150 million but that the tribunal can assess the complexity of the claim and whether it has jurisdiction. If it's just a simple arithmetic calculation that causes it to be exceeded, the tribunal should have jurisdiction.

In clause 35, under the release provision, the CBA recommends that it's unfair to require a release of all the rights that may flow to the first nation from a particular set of facts. If Canada wants a release on a particular cause of action, on a particular claim, then that's all it should get. It shouldn't get an open-ended release such that on the same facts there could have been an Indian agent who took certain actions that resulted in several specific claims. If only one of those claims is before the tribunal, then Canada should only get a release on that one claim.

I'll go to the last recommendation, because I want to highlight this. This is on the minimum requirements to be included in a claim. The minister referred to this in his submissions before the committee. We said the minimum standard of what constitutes a reasonable application should be set out in the legislation--at least the bare bones--and we give some suggested minimum standards there in our final recommendation.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Devlin. That was great.

Ms. Lickers, you have ten minutes.

[Kathleen Lickers, Secretary-Treasurer, Indigenous Bar Association]

Good afternoon.

I appear before you today on behalf of the Indigenous Bar Association.

You have a copy of our brief. I don't intend to read that brief; rather, it is my intention to speak more directly--from my heart, I suppose--and to encapsulate certain of our views towards the need to reform the process.

I am a Seneca from Six Nations. I am intimately familiar with Canada's land claims process. I have been commission counsel for a number of years to the previous Indian Claims Commission, and I was also counsel to the Ipperwash inquiry, so I know first-hand what it looks like for the specific claims process to fail on the ground.

In my view, every legislative attempt of this country since the 1960s that has sought to address the matter of specific claims has sought a recognition that these matters do call for justice to be done, but our failure as a country to come to grips with these issues is what leads us here today to ask if it is this bill, Bill C-30, that gets us there. Is it what's needed?

I believe it was Canada's failure as a country to balance what was needed in 1974, when it was asked, in striking the office of native claims. It was foreshadowed by Supreme Court of Canada Judge La Forest even then, when he said that the fundamental objectives of “finality and independence” screamed out to this country on these issues.

In fact, if you go back to the Hansard debates on the original recommendation for an independent claims tribunal of the first nations witnesses to the first parliamentary committee, the predecessor to this committee, who joined with the Senate.... Incidentally, my grandfather, Norman Lickers, was the commission counsel too. If you read the Hansard debates from that time period, you will see in that record the representations of first nations across this country. In words far more articulate than mine, they explained why there is outstanding treaty business and what needed to be done.

Until now, Canada as a country has asked first nations to find justice in a process that it has single-handedly designed--and not only did it design it, but it also delivered it from within the walls of the very department whose actions were to be impugned.

Then you ask the question the rest of the country poses to us: why can't this be solved? Why do these issues remain? But to the first nations you ask, “Should we change this?” The answer is a resounding yes.

After you have heard from many experienced first nation Canadian witnesses who have brought to you very technical and heartfelt representations, I believe the question left with you as a committee is whether Bill C-30 and all the proposed amendments get us far enough, and whether the amendments being asked of you are such that they can be addressed within the mechanisms that the bill sets out.

Within the mechanisms of the bill, you have a five-year legislative review. Within the mechanisms of the bill, you have the capacity to strike advisory committees. You have the capacity to address the call for elders' councils. You have the capacity, by its structuring of its rules--designed with the expertise of lay people and legally trained people throughout the country--for it to design its process.

You also have an oversight committee within the terms of this bill, and I say to you, as I conclude further on in my remarks, that I do believe there is a role for this committee.

But let me get to my very substantive remarks on this bill.

The Indigenous Bar Association supports this bill. We come here making no recommendations for amendment. We do take caution in a few areas, but let me start with why we support this bill.

First, it is a matter of establishing the independence of the process from outside the walls of the Department of Indian Affairs--and frankly, from outside the Department of Justice, whose advice is called upon repeatedly.

We also take the opportunity to note that the striking of a tribunal represents another opportunity for Canada to ensure that the justices who make up that tribunal include aboriginal justices and that you take the opportunity to appoint further aboriginal justices to the superior courts of this country, and by doing so draw a larger pool of people to the process by which it is being designed.

There is a greater levelling of the playing field for first nations in this bill, and it comes clearly and squarely in the form of timelines. Without this bill, the status quo remains, and the status quo would have every first nation claimant band waiting and waiting.

Bill C-30 creates a remedial step to level the playing field and puts into the hands of first nations a remedy to hold the Government of Canada to account for its failure to respond in a timely manner. That might seem trite to anyone unfamiliar with the claims process, but to anyone familiar with the claims process that is an enormous change.

The subject of oral history is one that I personally hold dear, having been commission counsel to the Indian Claims Commission for a number of years. It is the only post-Oka institutional improvement to the claims process in this country, for one thing. But second, it was the first institution in this country that sought as a matter of its process to include oral history in the evidentiary formation of the claim.

There is a body of work this tribunal can draw from; there is a body of work for protocol. There is also a role for this tribunal to strike an elders council. That's within the purview of the bill. That does not require amendment.

On the subject of land-based specific claims and why the IBA takes a position not to make a recommendation for amendment on this point, we accept the fact with some notable objection that $150 million is the financial cap. That has to do with cabinet mandate. That does not have to do with the subject matter of that section of the bill.

On the point of the land, its inability to award land compensation, there is a fundamental need for a tribunal outside the Department of Justice to render findings on land-based specific claims that are called treaty land entitlements. The reason is that having the experience and body of work from the Indian Claims Commission, there's a role for justices to make determinations of land quantity and land quality.

What does it mean for a first nation to say that all the lands to which they were entitled under treaty were not provided to them, either because not enough Indians showed up on the day the treaty commissioner took the pay-list analysis or that the land to which they were originally assigned was swamp?

I speak in very stark terms, but those are the realities of the claims that come before the process.

In my final minute, I suggest a further role for this committee that goes beyond the clause-by-clause review, and it is this: there is too much responsibility to be placed on Bill C-30 if we believe it is the only answer, that everything about the specific claims process will be improved by Bill C-30.

The answer to that is shaped by the political agreement. All the elements that go to ensure a fairer process don't all exist within this bill. I put it to you that there is a role for this committee to ensure that what is outside the bill but finds itself in that political agreement is overseen by you.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you very much, Ms. Lickers.

Mr. Pratt, you have ten minutes, sir.

[Alan Pratt, Lawyer, Alan Pratt Law Firm]

Thank you, Mr. Chairman.

I'd like to do something that is probably a very bad idea, which is to begin by apologizing to the committee. I had every intention of getting a submission into the hands of the committee before today, but unfortunately you don't have one. The committee does have a submission, but it hasn't yet been translated, so I will be making reference to a document that you'll have to perhaps wait a few days for.

Oh, you have it. Okay.

[The Chair, Conservative, Barry Devolin]

The members do have a submission.

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

You can safely assume that we have read it.

[Alan Pratt]

Excellent. Thank you.

In the limited time, I'm going to indicate that I am here as a private citizen, unlike my colleagues, but I am a legal practitioner. I've worked in the field of specific claims since about 1985.

Ms. Lickers mentioned the Indian Claims Commission. I was actually counsel with Mr. Winogron, who is in the room here, on opposite sides at the very first claim that went to the Indian Claims Commission in the early 1990s.

My reaction to the bill is mixed. It is clearly an advance over what we've had before. It's an advance over the Specific Claims Resolution Act, but I believe it is lacking in a number of quite important ways.

I have made eight recommendations, and since you have seen my submission you've seen that I've not only made recommendations but undertaken the task of drafting clauses that might remedy the deficiencies I've identified in the bill.

I do want to say, as I mentioned in my submission, that in 1963 Parliament considered a bill to introduce a specific claims commission. That bill failed. It's an interesting historical footnote, perhaps. But part of the exercise was an evaluation at the time of the overall amount of money it would take to settle all claims. The total estimated in 1963 to settle all specific claims was about $6 million. I think that's off by a factor of a thousand, and if you correct it for inflation it's still a major underestimation.

I start by saying that because if this bill is not the answer or does not lead to something that will be the answer, this amount of money that is owing as a debt of the Canadian state will simply continue to increase at an alarming rate. So it is very important to our long-term future that we fix the problem you've heard about.

My first recommendation relates to the reconciliation function of the tribunal. The bill in its preamble notes correctly that reconciliation is one of the outcomes of settling land claims. But the tribunal is not a reconciliation body. It's an adjudication body.

So I have made a recommendation that there be a mandatory pre-hearing conference involving mediation so that, even after all the steps are taken, once you're in the tribunal there must be a mandatory hearing in the nature of mediation before it goes to a formal hearing, and that the member or members of the tribunal conducting the mediation not be involved in the hearing.

The second recommendation also relates to reconciliation. Like the CBA, represented here by Mr. Devlin, I believe that the tribunal should have the authority to make certain declaratory orders. He mentioned the declaration of rights respecting land.

I have recommended three other types of declaratory orders that the tribunal be authorized to make. One is to recognize that a crown breach has caused a non-pecuniary loss, which means a social or cultural loss to a first nation. That's a very important recognition in the healing process of claims.

Second, in some situations the crown should be told by the tribunal that it should apologize to a first nation.

And third, the tribunal should have the authority to make a declaration that if a first nation chooses to accept something less than it is fully entitled to, by accepting that the first nation is making a generous gesture in favour of the people of Canada.

Some of those points have arisen out of the practice in New Zealand, and I think the committee may benefit from hearing more about that.

A third recommendation relates to a confusion in the bill, and this relates to clause 11 of the bill primarily. The bill makes it clear that when a claim that has been accepted is in negotiations for three years unsuccessfully, then the tribunal has jurisdiction. It doesn't make it clear that the claim continues to be regarded as valid. It opens up the question that the first nation may have to re-prove the validity of its claim. I don't think that's the intention, but it is not clear that the tribunal's jurisdiction in that situation is only about compensation.

My second point under this heading is that the first nation should have the right, in my view, to seek to put the validity of a claim before the tribunal, and then, if it is successful, have an opportunity to negotiate it before the compensation ruling is made.

I think my suggested amendments open up and make more flexible and partly make more clear what the intention is with regard to the first point, and in the second point they give the first nations more flexibility and foster negotiations.

My next point relates to costs. The tribunal is basically asked to create a costs regime that's consistent with the Federal Court rules. That means it is likely that first nations will be penalized in costs if they are not successful.

I have recommended two changes. One is providing for advance costs to be awarded by the tribunal so that first nations going into a hearing will be able to afford to appear--that's consistent with the current practice. The second is that at the end of the hearing, the tribunal should have discretion regarding costs, but unless there's some exceptional factor, like bad faith on the part of a first nation, a first nation should not be compelled to pay the costs of the crown.

My next one is the definition of “claim”. I'll touch on some of the rest of these very quickly. There should be, I believe, in paragraph 14(1)(d), reference to an illegal or improvident lease. The clause at the moment talks about an illegal lease or disposition. I believe it leaves out a possible source of claims, which is a disposition or a lease that is legal in the sense that it has been validly granted but is improvident in the sense that the consideration is inadequate. The addition of those words would remedy that, and it's consistent with case law I have referred to in my brief.

Next is something quite important: exclusion of certain relief. I think it is a very grave problem with the bill that the tribunal is not permitted to grant punitive damages or non-pecuniary damages, even if a court would make such an award, given the circumstances of a case. I think it is entirely improper for the crown to ask for a first nation to set aside a type of relief that a court might well award. I'm not saying it would award it, but it should be an issue to be resolved through the evolution of case law and through the tribunal's decisions. I've recommended an amendment that reaffirms in fact the jurisdiction of the tribunal to grant those types of relief.

My second-to-last point relates to claims in which there's reserve land involved. You've heard already some concerns about the breadth of the release clause. In my opinion, if the subject matter involves releasing the rights to a reserve, the first nation in question should have the opportunity to decide whether it is prepared to accept an award of the tribunal in exchange for an absolute surrender of its reserve land.

[The Chair, Conservative, Barry Devolin]

One minute.

[Alan Pratt]

Thank you.

It may or may not agree that a surrender in exchange for the compensation awarded is proper.

One of the difficulties with this bill is that it isn't clear how a first nation is mandated by its members to initiate a proceeding in the tribunal. It's quite possible that a majority of a chief and council, without any further mandate from their members, could initiate a proceeding that would lead to the extinguishment of rights to reserve land, without ever consulting with or seeking the informed consent of the members. I have suggested amendments to deal with that.

My final point echoes one of Ms. Lickers' points, and that is, in the bill, the Minister of Indian Affairs and Northern Development is listed as the responsible minister for purposes of the Financial Administration Act. This reaffirms the connection between that minister, his department, and the administration of the specific claims system. In my submission, that should be terminated.

Thank you.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Pratt.

Our three witnesses have set an excellent example for committee members, in terms of staying on the clock.

We have five minutes each. I would ask you to not have a very long preamble, followed by four questions, leaving only 30 seconds for answers.

We will begin the first round of five minutes with Ms. Keeper, from the Liberal Party.

[Tina Keeper, Liberal, Churchill, MB]

No, Mr. Russell is going first.

[The Chair, Conservative, Barry Devolin]

Oh, pardon me.

Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Thank you, each of you, for your presentations.

Ms. Lickers, I certainly heard your impassioned plea to pass this piece of legislation without amendment, and that the committee probably has more to do with how this piece of legislation is wrapped within the political accord, and other factors. I would just argue that I think we have more to say about this particular piece of legislation and that we can make more changes to this particular piece of legislation on our table now than to some of the other political nuances that may surround it—but that's a debatable point.

I want to raise two issues.

On the issue of land, Mr. Devlin, and the fact that the tribunal cannot award land, or really make any declarations regarding the awarding of land arising from its decisions, you had suggested that we should at the least expand it to make declarations respecting land quantum and about the nature of such lands owned by Canada.

What would that do in a practical sense if we included that amendment? Each of you can comment on that. What does it do in a practical sense? Does it maybe force more open negotiations or force people to negotiate a settlement? What does it do in a practical sense?

And then my second question is about the release, because these issues have been raised before by me and by my colleagues. I remember the Indian residential schools debate. When the crown was going to make certain awards to individuals or survivors of Indian residential schools, they would not compensate them for loss of language and culture—this was a huge issue—but wanted the survivors to release all claims against the government for any loss of language and culture. This was a hugely emotional issue, affecting individuals and communities, and one of the real stumbling blocks, I think, to any type of process, until we had this Indian residential schools agreement. I see this being resurrected somewhat here in the release provisions.

So I just want you to comment on those two aspects: the land declarations, and what they do practically; and on the release provisions again.

[Christopher Devlin]

I'll be as quick as I can.

On the land issue, I think it raises two sub-issues. One of them follows from what my colleagues have spoken about, the need for the tribunal to have flexible rules. Under the legislation right now, there's an opportunity for case management before the hearing. I think that whatever rules the tribunal adopts, it should also have the opportunity to bring preliminary motions.

The reason I'm suggesting that's a partial answer to your question is that if there's a stumbling block at the negotiating table, where the crown and the first nation just can't seem to agree and there's a huge gulf between their two positions, if the tribunal were able to make a binding decision on that issue as a preliminary motion, but not as the final determination, it may actually facilitate the successful negotiation of the claim.

We don't have the rules of the tribunal in front of us—we have some guidelines in the legislation for what can be there—and I haven't seen Mr. Pratt's suggested amendments, but under the kinds of rules the tribunal can adopt for its own procedures, maybe this will fall under case management, or maybe it will be an independent ability to hear preliminary motions on specific issues.

So, on the land quantum issue, for example—and this leads to the second sub-issue—very often a province is involved. It's not all the time, as sometimes the federal government has some very nice pieces of land that first nations would like to have as part of their settlement, and which can be made available. The recent Musqueam case in Vancouver comes to mind, with that block of downtown Vancouver being set aside for their treaty negotiations. That aside, the province often has the good real estate.

If there's a declaration as to how much land is owed by Canada, that may actually facilitate the trilateral negotiations with the province. The province might say, oh, that's how much we have to cough up? Well, now we can quantify that; now we know for certain.

On the release issue and the loss of culture and language, I was in front of the committee for that hearing as well, and my recollection is that Canada backed off on that and stopped requiring a release on loss of culture and language, and said okay, we're only going to require a release on the physical and sexual assaults. I think Canada should do the same thing in this bill and say this is what you're getting compensated for, so this is what we're asking the release for—as opposed to it being too broad.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

Monsieur Lemay, from the Bloc; you have five minutes.

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

I have several questions that I would like to ask. I would have liked to focus in on some very specific issues, but I will not have enough time to do that. I know that those of us who are lawyers like to talk too much. However, you can safely assume that we have read your submissions.

Once legislation is adopted by Parliament, care must be taken not to come back to Parliament seeking an amendment to that particular act. Does this provision not satisfy most of your demands? If persons coming before the tribunal were required to follow a given set of procedural rules, would that not address most of your concerns? Would this approach not be preferable to amending the bill as you, especially Mr. Pratt, are suggesting we do?

As it so happens, I did read your brief very carefully, Mr. Lickers, and there is something I would like to say. It would in fact be preferable to have more aboriginal judges, but until that happens, it would be even better if superior court judges were more aware of aboriginal issues. Right now, this is the major problem when it comes to implementing Bill C-30. Please feel free to comment.

My next question is directed to the Canadian Bar Association. Among other things, you recommend “an internal administrative appeal process in addition to judicial review by the Federal Court.” I disagree with your recommendation and you will be hard pressed to change my mind. As I have told everyone, we want to avoid a situation where the federal government will use this bill as an excuse to delay the settlement of specific claims. If the federal government is able to resort to an internal administrative appeal process in addition to having the judicial review by the Federal Court, do you not think there is a possibility that the settlement process will be delayed even further?

[Alan Pratt]

All right, I'll be very brief.

Monsieur Lemay, I believe that clause 12 is procedural. I think a colleague of mine mentioned that one of the unfortunate realities is that we do not know how the tribunal will seek to apply its power to make rules.

And, yes, it might work much better if there were good rules than if there were bad rules; but, in answer to your question, I do not believe that making good rules would overcome my objections to the bill.

[Kathleen Lickers]

I would just like to respond by saying, absolutely, I think that jurists in every court in this country could be more sensitized and aware. This is not to be disrespectful to any member of the jurist community serving in this country, but to be consistent with the position of the IBA when we appeared before the committee with the CBA in November 2005 to call for the appointment of further aboriginal justices in this country.

[Christopher Devlin]

On your third question, there was great debate within our section about whether or not there should be a true right of appeal or whether the judicial review was a sufficient mechanism for decisions that seemed out of line with the jurisprudence or with the particular facts of a case. Both within the section and within the evidence before this committee it's raised time and time again that there is no appeal. Let's suppose you just have one judge, and for whatever reason the law is simply applied incorrectly. Surely there should be recourse to that.

The threshold is very high on a judicial review, on administrative review, notwithstanding the Supreme Court's recent clarification of administrative law last week. Still, it's a high threshold. The CBA's suggestion is simply to try to strike a balance of having a sober second thought without a true appeal function from the tribunal to the Federal Court. It's not a true appeal to the Federal Court. It's only a judicial review, but there is an internal review. We already have mechanisms like that set up in Canada, including the Immigration and Refugee Board. Those sorts of internal review or second review processes already exist in other federal administrative tribunals, and we're suggesting that would meet this perceived problem with the act as it is currently structured.

[The Chair, Conservative, Barry Devolin]

Thank you very much.

Ms. Crowder, you have five minutes.

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

Thanks, Mr. Chair.

Thank you for coming before the committee and for your very detailed briefs.

I want to specifically address paragraph 16(2)(a) and clauses 42 and 43 around the transitional procedures. The reasonable minimum standards, in my mind, relate to clauses 42 and 43. I don't have time to go over the details of the case, but we have a very detailed briefing from Snuneymuxw First Nation, which is from my riding. They've laid out a number of concerns around the transitional provisions. They have waited for over ten years and have now been in four years of negotiation. It is unlikely it will be at a stage that would be acceptable by December 31, 2008, such that it will be concluded. In their view, they will be disadvantaged, in that they've been going through this lengthy process. Once the bill comes into force, there are a number of questions around even reasonable minimum standards.

I just wonder why none of you addressed the transitional procedures in your briefs, or if you think they are fine as they stand.

[Kathleen Lickers]

To the extent that the IBA referred to the fact that the Indian Claims Commission's mandate has by order in council been amended to expire December 31, 2008, which puts an added environmental pressure on the need for there to be a resolution on this bill and whether or not it will be proclaimed, what I missed in your question was whether or not this first nation is at a negotiation table now.

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

Yes, they are.