Indigenous and Northern Affairs Committee on April 30th, 2008

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

Thanks, Mr. Chair.

I'll make a couple of points. One is that the parliamentary secretary raises an important issue about the role of this committee if this legislation should pass. I agree that there is a very important role for this committee in ongoing oversight. That was a very strong recommendation from Professor Schwartz and others, and I would certainly agree that the committee needs to have that role.

Having said that, we already know from past experiences at committee that this committee can make recommendations, and reports can come forward to the House, and they will simply not be acted on. We have the report on post-secondary education, No Higher Priority, which this committee saw in the last sitting of Parliament. The committee resubmitted the report, and it came to the House on a concurrence motion, which we debated fully, and yet the recommendations in that report simply have not been acted on.

We saw this committee submit a report on the United Nations declaration on indigenous rights. It has come to the House through a report and has been debated as a result of a concurrence motion from the status of women committee, and we simply have not seen the government act on it.

I fear that even though the committee may examine how the legislation is being implemented over the next five years, we can't rely on reports coming out of this committee, no matter what government is in place, as a way to move it forward. I acknowledge that, although the practicalities are not spelled out in the legislation, the practicalities of many aspects of this legislation are not spelled out. We're reliant on a number of other mechanisms, including the political agreement, to spell out some of those details, and I would think it would be remiss of me to put forward an amendment that tries to spell out the practicalities. We have other processes to do that.

Perhaps this amendment may actually encourage the government to develop the consultative process that the Auditor General and others have called for. There are five years before this particular section would come into effect. It says it's within one year after the review, which is a five-year review. So in fact the government has six years to come up with a consultative process.

Perhaps supporting this amendment will light some fire under people to come up with a consultative process that recognizes some of the challenges that were identified by the witnesses, as Mr. Warkentin rightly pointed out. But I don't think it's the job of this committee, at this stage in this piece of legislation, to attempt to develop that consultative process. We can signal the committee's intention; we can make sure that intention is reflected in the legislation; then it's the task of the government to make sure it happens.

[The Chair, Conservative, Barry Devolin]

Thank you.

Monsieur Lemay.

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

Mr. Chair, as I said earlier, it does not hurt to stress the issue. We are asking First Nations to get involved. It is important to read subclause 41(2) which our colleague's amendment proposes to change. As for the tribunal's responsibilities that we agreed to earlier, they are in clauses 11 to 13.

I find it very interesting that, under subclause 41(1), it is possible to consult with communities, aboriginal people and the AFN, among others, on the structure of the tribunal and its efficiency and effectiveness of operation. This is where it becomes interesting and that recommendations concerning the tribunal will be made to the committee and to the government. The government will not have to ask First Nations for their input and come back a year later with proposed amendments. Everything will be included in the same report. I find my colleague's idea extremely interesting. I think, Mr. Chair, that we should vote on this amendment.

[The Chair, Conservative, Barry Devolin]

As much as I would like to move immediately to a vote, I will move to another committee member who wishes to say something.

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Going back to the political agreement, I would like to suggest that within that agreement the Government of Canada has agreed to meet and consult with the AFN after five years on any proposed changes. That of course was an important part of the negotiation for this legislation.

Having said that, I would like to save all of my debating energy for the last NDP amendment, so I am going to simply cease here.

[The Chair, Conservative, Barry Devolin]

Wonderful.

If there are no further comments, I would like to take a vote on the amendment.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 41 as amended agreed to)

(On clause 42—Existing claims)

[The Chair, Conservative, Barry Devolin]

Mr. Bruinooge is girding for his arguments.

Before we go back to the first page, on the last page in your package, page 15, is a proposed amendment known as amendment NDP-7, put forward by Ms. Crowder regarding clause 42.

Is it your intention to move this?

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

I would be prepared to move it, Mr. Chair.

It will probably come as no surprise to many members of this committee that I have some serious concerns around clause 42 concerning the transition procedures. I think we heard that fairly consistently from any number of witnesses.

There were a number of groups who came forward, but I want to specifically quote from the Snuneymuxw position. They are talking about the fact that in their particular case they had submitted a claim back in 1993, and it's been under negotiation. Their point with this was that they felt the wait time is likely to be considerably longer, since all specific claims accepted for negotiation prior to the new legislation will face exactly the same wait time, and all of these claims could potentially obtain tribunal access on exactly the same date.

They expressed their concern by saying:

We respectfully submit that it is unfair to require Aboriginal Nations who have already put in more than three years at the negotiation table to request permission from the Minister to access the Tribunal. The discretion created places undue power in the hands of the Minister and his advisors to determine the order in which the Tribunal will be accessed.

In suggesting that we delete this clause, my intent is that it will allow nations who have been in negotiation for more than three years to go directly to the tribunal at the coming into force of the act. That's why I propose this amendment.

[The Chair, Conservative, Barry Devolin]

Thank you, Ms. Crowder.

Before we begin our discussion, we have a very small piece of housekeeping business. If we should happen to complete clause-by-clause today, on Monday I think we would have a subcommittee meeting, so the rest of the committee members would not have to come at 3:30 on Monday. If, however, this discussion carries on after 5:30, we will all reconvene on Monday at 3:30 to continue.

With that small sidebar, I'll go to Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

The pressure is on, then.

I will start by suggesting that firstly Madam Crowder indicated that a number of witnesses had brought this forward. I would have to disagree. I know she brought it forward at every meeting, and that is her right.

However, I genuinely believe that it's in fact not the correct position. When individual first nations have been accepted for negotiation, that is actually the best position to be in. That is exactly where they want to be with the government. So many haven't yet been accepted for negotiation; that's why we have a massive backlog. The whole purpose in bringing this tribunal forward is to deal with that backlog.

For those who have been accepted for negotiation, it is truly a validation of where they initially put their position, and they're actually dealing directly with the Government of Canada, which is perhaps still the best path to a resolution. Those communities are in my opinion not affected at all in terms of timing, because they have been validated. Those who haven't are still waiting for that letter to come from the government.

Someone quite wise mentioned to me that there actually is no clock running. The only time a clock will start is when this bill passes. At that moment, those who haven't been validated for a claim will know that they have three years. In three years they will for sure have that letter come to them.

Mr. Chair, unfortunately this amendment will, in my opinion, add considerably to the backlog. It takes away from the very spirit of creating the tribunal itself, and it's something that I am quite certain would be very challenging for us as a government to accept in the light of our negotiated agreement with the AFN and the approval we've received through our cabinet.

I'd put those points on the record. This is something that we feel is not only unnecessary but takes away from the spirit of the bill itself.

[The Chair, Conservative, Barry Devolin]

Ms. Crowder.

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

I thank the parliamentary secretary for that; however, I didn't hear anything that deals with the nations who have been in negotiation for substantially longer than three years right now. I would agree that this bill goes a long way towards dealing with first nations who are not currently in negotiation, who haven't had their claims reviewed, or are at whatever stage. We know there are significant numbers there.

But I am still concerned about nations who have actively been in a negotiation process. That's what I'm attempting to deal with here: those who have been actively in negotiation for more than three years now. I don't see a way in this clause 42 to track them into the tribunal without ministerial approval, in that first three years. If there's another amendment that could be proposed that would deal with this, that's what the issue is for me.

Although—you are right—oftentimes when I raised the question people would respond, there were submissions that talked about the fact that they felt they were being disadvantaged by not having some recognition that they had been in negotiation for substantial periods of time. That's what I'm trying to get at with this amendment.

[The Chair, Conservative, Barry Devolin]

Thanks, Ms. Crowder.

Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

I think the intent for all of us is to see the backlog reduced. I'm wondering whether our expert witnesses could shed some light on what effect they feel these changes might have, and whether in fact the outcome would be a reduced backlog or whether it would have any ramification for it.

[The Chair, Conservative, Barry Devolin]

Would the officials like to make a comment on this?

[Sylvia Duquette]

Sure.

This was actually the subject of a large amount of discussion with the Assembly of First Nations during the task force meetings. One of the key issues here is that there is that huge assessment backlog. Were it to be removed, if the objective is that those who have been negotiating for a long time will get quicker access to the tribunal, that won't happen, and the reason it won't happen is this huge backlog. There's a huge backlog of about 560 claims in assessment waiting for the letter; there are and will be about 120 claims in negotiations, many if not most of which have been going on for some time.

If this amendment goes through, just from a very practical point of view technically there would be access to the tribunal, but practically there would be none, because the tribunal would then have to prioritize all of these claims.

So they're some years away from getting before the tribunal. That's why the plan is to bring those who don't have their letters into the assessment backlog. Those at the negotiation table are in a better position than those waiting, and the most they have to wait further for access is three years. But of course in individual cases the parties might agree to bring it to the tribunal, and that is provided for in the bill.

I don't know whether this helps, but it won't achieve the goal.

[Chris Warkentin, Conservative, Peace River, AB]

That does bring clarity. For many around this table, the objective is to see the backlog reduced so that first nations have access to this process sooner, so I thank you for the clarification.

[The Chair, Conservative, Barry Devolin]

Monsieur Lemay, please.

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

I would like to follow-up on what Ms. Duquette just said. Please tell me if I got that right.

Let us suppose clause 42(2)(c) is not amended and stays as is. If someone has been negotiating with the government for five years, under this provision, the minister would have to advise him in writing that for the purpose of section 16, he is deemed to have been notified, which would save him a few steps under section 16.

[Sylvia Duquette]

A few steps would be avoided. Access to the tribunal would automatically be granted within three years.

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

That would be the maximum. If they had already been negotiating, under section 42, they would have to wait a maximum of three years

[Sylvia Duquette]

That is correct.

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

If this is the case, I cannot support Ms. Crowder's amendment.

[The Chair, Conservative, Barry Devolin]

I have no further names on the list. Are there any further comments?

(Amendment negatived) [See Minutes of Proceedings]

[The Chair, Conservative, Barry Devolin]

It appears the Rocky Mountains were the dividing line on that one.

There are no further proposed amendments from clause 42 to clause 53. Can I consider them as a group?