Evidence of meeting #23 for Indigenous and Northern Affairs in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was claim.
A recording is available from Parliament.
5:10 p.m.
Okanagan Indian Band, Donovan & Company
I concur with Mr. Donovan on his point. I'm not quite familiar with the whole bill. My focus was on the two points we raised. I won't comment more on that.
5:15 p.m.
Lawyer, Olive Waller Zinkhan & Waller LLP
I would answer the question in this way. Bill C-30 is the product of a set of negotiations, and it represents compromise. In a perfect world, the tribunal wouldn't have the final say, but we live in an imperfect world. As I've indicated before, the first nations in Saskatchewan have adopted a resolution to support the bill. We think what's in the bill is better than not having the bill go forward.
5:15 p.m.
Michel First Nation, Ackroyd LLP
I would like to speak to the courts. We are currently before the courts, and because we've been denied access to the specific claims policy, we're finding that we're faced with the statute of limitations in the courts of Canada. As well, our treaty rights are being confused with the Indian Act. We have never relinquished our treaty rights. Our treaty rights are forever. In our situation, it's important to have that appeal.
5:15 p.m.
Conservative
5:15 p.m.
Aseniwuche Winewak Nation of Canada, Ackroyd LLP
No, because right now, as proposed, it doesn't include our community. It goes back to inclusion. That's about it.
5:15 p.m.
Conservative
5:15 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Thanks, Mr. Chair.
I want to thank the witnesses for coming before us today.
I think Chief Callihoo and Ms. McDonald have made very clear their recommendations on what needs to change in terms of the language. I appreciate your clarity on that.
I want to address the $150-million cap. Today, when the Canadian Bar Association came before us, they specifically recommended that there not be a blanket cap on the amount the tribunal may award in compensation. Rather, Bill C-30 should contain a provisional cap of $150 million subject to the tribunal's ability to assess the complexity of a claim.
Do you think that would address some of what you're raising?
5:15 p.m.
Lawyer, Donovan & Company
It could, Ms. Crowder. The difficulty I have with the suggestion, and I haven't read their brief, so I don't know exactly what they're saying, is how to tell whether a specific claim is simple or complex. These are judges who will be determining the answer, and I would think that they would be fully qualified to deal with any specific claim on the merits, whether it's simple or not.
The one that Chief Alexis has brought forward is the taking of a 28,000-acre reserve for nothing. It sounds simple to me, but there are some fairly complicated legal issues, perhaps about how you quantify damages. I would certainly think that other than the size of that claim, there's nothing out of the ordinary, and the tribunal ought to be able to rule. I would say that the tribunal should be able to rule on any specific claim, because I don't know how you could possibly draw a line between easy and hard specific claims.
5:15 p.m.
Lawyer, Donovan & Company
Either the cap should be dropped or there should be some mechanism, at the very least, so the tribunal can direct Canada to negotiate, even if the amount is over the cap.
5:15 p.m.
Lawyer, Olive Waller Zinkhan & Waller LLP
If that's a change the committee decides to recommend, I would agree with Mr. Donovan's comments.
5:15 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Because our time is so limited, I want to just touch on something that I'd touched on earlier, around Snuneymuxw's.... They put together a comprehensive brief, but I want to talk specifically about the transitional procedures in clauses 42 and 43. As well, I wasn't clear enough in my question around clause 16 with regard to the requirements in filing.
I wonder if you have any comments around the fact that people could be in a specific claims process, could have been accepted for negotiation, and, with this new bill, as the requirements are laid out, could in effect not meet the new requirements--potentially. Do you have any comment on that and on how the transitional procedures could potentially disadvantage people who have been in the loop for years and years?
5:20 p.m.
Lawyer, Donovan & Company
To take Okanagan as an example, the claim was filed two decades ago. It was accepted for negotiation five years ago and was rejected, or Canada withdrew, two months ago. So we would be, in the transition provisions, under clause 43. Actually, Okanagan would have to re-file its claim and wait for three years. Then it would be in the same lineup as anyone else, despite the fact they've been waiting a generation.
Our firm has filed over a hundred specific claims. Some of our clients will be lucky enough to have their claim rejected the day after the bill is. Bingo, that's great; they filed five years ago and their claim is rejected. They can go immediately to the tribunal. But while that would be good news for them, it's pretty arbitrary. Trying to address claims that have been in the system for a long time and that the first nations put a lot of time and effort into resolving, it seems pretty reasonable that you'd give them some degree of priority access.
The other problem with the transition provisions as they're worded is that they deem claims in negotiation to be in negotiation starting the day after the bill. So you could have a claim that's been there for five years, two years, it doesn't matter; the day after is day one.
That has a fairness problem with it, and I think that's fairly self-evident. But it also has a practicality problem, because it means that all of the claims that are in negotiation now--and there are a lot--will come up for tribunal eligibility on the same day. That doesn't need to be the case. You could cross out that one line from clause 42, the deeming provision. This is good news, bad news. The good news is that if you've been in negotiation for three years, you can go to the tribunal. The bad news is that you're deemed to start negotiations when we say so.
That doesn't make any sense. It creates this automatic, instant backlog: add water and you have a backlog. There's no point in doing that even if you don't care about the fairness--and I'm sure everyone does.
So those transition provisions could be cleaned up by a few really simple amendments that this committee could--and should, we would say--put forward.
5:20 p.m.
Conservative
The Chair Conservative Barry Devolin
There are a few seconds left. Does anyone else have a comment they want to make before we conclude this?
5:20 p.m.
Conservative
The Chair Conservative Barry Devolin
Thank you.
Our last questioner today will be Mr. Bruinooge, for six minutes
5:20 p.m.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
Thank you, Mr. Chair.
I'm going to split my time with the member for Desnethé—Missinippi—Churchill River. I like hearing that name, because I remember that before when I referred to it, a member from the other side had that riding.
Mr. Donovan, I appreciate your following the questions I've asked in previous meetings. My question for you now is in relation to the cap, as you've suggested that we remove it.
Many have lauded the fact that our government has attached $2.5 billion to the tribunal over 10 years, which would be delegated at about $250 million per year. By removing the cap, how do you think that might impact the tribunal's ability to be able to deal with the highest number of claims possible, in light of the monetary limit that's been placed upon the tribunal?
5:20 p.m.
Lawyer, Donovan & Company
If you simply removed one cap of $150 million and you didn't remove the cap of $250 million, you'd have a potential problem with delay of settlement of the claims, because one significant claim could deal with a lot of the money.
If you opted for our second suggestion, then that problem wouldn't emerge at all. The government has said that money for the larger claims will come out of a different silo, so that wouldn't generate any additional backlog or interfere with the ability to process claims along the lines intended.
5:20 p.m.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
But you would agree that $2.5 million is a sizeable amount of money to set aside from a government budget, at least for this purpose.
5:20 p.m.
Lawyer, Donovan & Company
From one Winnipegger to an ex-Winnipegger, that sounds like a lot of money. On the other hand, let's say I took your house and told you I wouldn't give it back, but I'd let it be decided by someone that you could have input into appointing how much I owed you. But I'm only going to pay you a quarter of what it's worth, because I have some fiscal problems paying the full value of your house.
So $2.5 million is a lot of money, but the appropriate amount of money, in our submission, is the amount of money that by legal principles is owing to first nations. That issue of justice--the minister calls it “the legal and moral imperative” in the political agreement--is to pay first nations what's legally owed to them, and not say, “We'd like to, but we can't afford justice”.
That's our submission on it.
5:25 p.m.
Conservative
Rod Bruinooge Conservative Winnipeg South, MB
But with the cap in place and going toward specific claims beneath $150 million, I am suggesting to this committee that the process will be able to bring forward resolution for a number of claims. As we know, a much smaller number of claims are above $150 million, so the bulk of the backlog is below the $150-million mark, at least based on the information we have.
I'm going to leave it there and hand it off to our new colleague.