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.