Evidence of meeting #27 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.
Liberal
Todd Russell Liberal Labrador, NL
The proposed amendment, the first one, is that Bill C-30, in clause 35, be amended by replacing the word “facts”, which appears after the word “same” and precedes the word “on” in line 20 on page 16, with the following: “causes of action”.
Robert Winogron Senior Counsel, Department of Justice
If there was an invitation to comment, I'd be happy to do it.
Conservative
The Chair Conservative Barry Devolin
I think it's clear.
What Mr. Russell is proposing is that in line 20 on page 16 of the English version of the bill, the word “facts” be deleted and replaced with “causes of action”.
Correct?
Senior Counsel, Department of Justice
Yes. There are two issues here. One is a technical issue and one is a substantive issue.
By making this amendment and substituting “cause of action” for “facts”, the result will be to severely restrict the scope of the release in this clause. The reason is that the action is as a result of the facts. If you simply release a cause of action, a claim can be brought on the same facts under a different cause of action. For example, once a claim that is based in negligence is dealt with, the award made or the decision made on a release operates as a result of this statute, and exactly the same facts can be brought forward again on a different cause of action. So the release would have a very severely limited effect, and it would not resolve the claim, except for that particular cause of action. That's the substantive issue.
The technical issue is that I question whether there can be even substantially the same cause of action; it either is the cause of action or it's not the cause of action. So technically, I don't think you can say “substantially” the same cause of action.
Liberal
Todd Russell Liberal Labrador, NL
That was exactly the intent of this particular amendment: to restrict the nature of the release, because you can only bring forward a claim based on very strict or very prescribed conditions, or on a very prescribed basis. But even though the basis on which you can launch a claim by the claimant is restricted and narrow, you want the claimant to then release in a broader perspective.
For instance, you cannot raise a specific claim based on aboriginal rights, based on the loss of culture and language, and those types of claims cannot come forward under this particular bill. But under this particular bill in the release portion, you say you want to release the government from ever launching the claim based on those particular issues. That's where I'm coming from.
I relate it to the residential schools agreement. This was very problematic. Originally when we discussed a residential schools agreement, the government would compensate only for physical and sexual abuse. It still will only compensate for physical and sexual abuse. There was a time when it said that even though it was going to compensate them only for physical and sexual abuse, it wanted them to release it from any future claims dealing with the loss of culture and language and those types of things, even though the courts have never really seen fit to allow one of these on the loss of culture and language to go forward.
It begs the question why you would want the release if the courts were never going to uphold it. That has been the nature of this particular amendment: that if you launch a claim on certain facts, you get compensated for those, and you release the government from any more claims based on those. That is the argument I have behind this particular clause.
You can only compensate me for loss of land or this or that, for taking it or stealing it or whatever, but you want me to release any more claims based on language, culture, spirituality, or whatever else, even though you can't compensate me for it. That's why I put this in.
Senior Counsel, Department of Justice
I'll just respond.
We should actually be quite careful not to confuse grounds with causes of action. What this amendment will permit is claims brought on identical facts, but simply under a different legal theory.
A cause of action is a way of framing the claim, so if there is a transaction, a claimant says “you acted negligently in this set of facts”, and the claim is resolved on that basis. With this amendment, the same claim can be brought on a different cause of action. This time you didn't act negligently; you acted fraudulently or you acted in some other fashion framed under a different cause of action. The facts are identical.
Liberal
Todd Russell Liberal Labrador, NL
I don't want to get into a protracted debate, but this is a serious issue.
If the word “grounds” were substituted for the word “facts”, instead of “causes of action”, would the taste be any better?
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
You're moving an amendment to obviously improve a situation in which you are concerned that the first nation may not be able to bring their full claim, and therefore they will have already released.
On Bob's point about that distinction between cause of action and the other, it's very important to realize that there are grounds for the claim, but there can be multiple allegations. What we're asking first nations to do is, based on a certain transaction that's been engaged, make all of their allegations, so it is open, for example, under this bill for the first nation to say “You were negligent, and alternatively there was fraud, and alternatively any number of things”, and for the tribunal to decide on all of that. So the whole claim related to that particular transaction is dealt with, and it's not a prejudice to the first nation bringing the claim.
Liberal
Todd Russell Liberal Labrador, NL
If you used the word “grounds” instead of “causes of action”, does that substantially change your opinion, Mr. Winogron?
Senior Counsel, Department of Justice
It doesn't change my opinion. I think it's still problematic with what the release is aimed at.
The release is aimed at the finality in a particular set of circumstances, as Ms. Duquette has said. Substituting “grounds” for “cause of action”--they are different concepts--doesn't get to the termination of the claim, which is what this is drafted to do.
Conservative
The Chair Conservative Barry Devolin
Do you have one last quick question, Mr. Russell? I also have a question.
Liberal
Todd Russell Liberal Labrador, NL
I would only say that in clause 15 of this particular bill, there are a number of exceptions.
You cannot lay a claim based on a number of “grounds” under clause 15, but if you go to clause 35, basically what it's saying is we want you to release us from ever making a claim against us based on those exceptions; you can't sue us or make a claim against us based on clause 15 or under all these different subclauses under clause 15, but we want you to release the government from ever bringing an action based on all of those exceptions listed in clause 15. Is that not right?
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
Yes.
Conservative
The Chair Conservative Barry Devolin
I'd like to intervene.
Mr. Russell, just from a procedural point of view, at this point we're discussing an idea that you may choose to move as an amendment. At this point, in terms of the decision tree, if you choose not to pursue this, then we move on. If you choose to actually move this as an amendment, then my first task will be to make a determination about admissibility. Subsequent to that, if it is admissible, we would have a discussion on the merits of it and then actually vote on the amendment at that point.
If you would like to proceed with this, then I would ask that you actually move it, in which case we can then move through this discussion. There will still be time for discussion on this, but it moves us beyond some of these hypothetical questions.
Liberal
Todd Russell Liberal Labrador, NL
I thank you, Mr. Chair, for your leniency and liberalism in allowing this particular conversation to continue.
I will move that Bill C-30 in clause 35 be amended by replacing the word “facts”, which appears after the word “same” and precedes the word “on” in line 20 on page 16, with the following: “grounds”.
Conservative
The Chair Conservative Barry Devolin
Thank you, Mr. Russell. We have received that.
I have a question for the officials who are before us.
Today several amendments have been proposed by members, and those amendments have been supported with substantive arguments about whether the member thinks that amendment will improve the bill, so to speak. Many of those have been ruled inadmissible on the grounds that they infringe on the royal recommendation, meaning they touch on the decision the government has made regarding the public purse and potential demands on the public purse. If they are found to have done so, they are ruled inadmissible regardless of their merit or appeal.
In your view and in your opinion, would the amendment as proposed infringe in some way on the royal recommendation?
Executive Director, Specific Claims Reform Initiative, Department of Indian Affairs and Northern Development
I'm not an expert on the royal recommendation. I can say that in terms of the public purse, clearly if the claim is not released and can be brought again on the same facts, then there is a problem on the same grounds. We might have to deal with the same claim and pay compensation on substantially the same set of facts.
Conservative
Senior Counsel, Department of Justice
I have nothing else to add. That's exactly my opinion.
Conservative
The Chair Conservative Barry Devolin
Could I ask for clarification in the words that you used?
During our prediscussion, that chat we had a couple of minutes ago, when Mr. Russell was contemplating an amendment that used the words “causes of action”, there seemed to be significant concern that it would in fact expand the potential universe of specific claims and would therefore have some impact on the royal recommendation.
When the language was changed from “causes of action” to “grounds”, you seemed less concerned; I'm not sure. I'm reading your body language a little bit, but I didn't hear a clear answer to my question. I'm not asking for a definitive answer, because at the end of the day I will decide, possibly consistent with your advice and possibly not consistent with your advice.
In your opinion, does changing the word “facts” to “grounds” impact the royal recommendation in terms of...? Well, I'll stop there. Does it impact the royal recommendation?
Senior Counsel, Department of Justice
In my opinion, yes, it certainly does.