Indigenous and Northern Affairs Committee on April 30th, 2008

[The Chair, Conservative, Barry Devolin]

Thank you.

I understood the answer in the sense that you said yes instead of no, but I would like you to explain to me why you are saying you feel this infringes on the royal recommendation.

[Robert Winogron]

I should clear up that you may have mistaken my body language for careful consideration. The reason is that the term “grounds” is actually used in the bill in clause 14. Claims can be brought on a number of grounds.

The term “cause of action” is not found in the bill. The term “cause of action” is a litigation term. There's a distinction to be made there. What you bring a claim on in the courts is different from the grounds on which you can bring a claim here.

So “grounds” and “cause of action” would have the same effect with this amendment. What it would do is severely restrict the operation of the release and, practically, the claim would not be resolved. The facts that gave rise to the claim could resurface under a different set of grounds. The release would really be inoperative except on the very narrow grounds, and a claimant would be free to bring the same claim on a different set of grounds. The result would be that the public purse would be affected with every subsequent potential claim that could be raised as a result of this amendment.

[The Chair, Conservative, Barry Devolin]

I'm going to rule that the proposed amendment is inadmissible on the basis that it could impose a charge on the public treasury, which offends the royal recommendation.

Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

I will not challenge your ruling, but can I make a statement that I disagree with this? Is that possible?

[The Chair, Conservative, Barry Devolin]

You already have.

[Todd Russell, Liberal, Labrador, NL]

I will only say that in no way, shape, or form does this impede upon the maximum amount that's payable under this bill. The royal recommendation is specific to this bill of $150 million maximum, and this would have absolutely no bearing. You can only raise certain claims, under this piece of legislation, on certain grounds, but if you want to raise another claim on different grounds it would be outside the purview of this particular bill and outside the scope of this particular bill. Therefore, it would not affect the royal recommendation of $150 million.

Anyway, you've ruled--wrongly, but there we go.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Russell.

(Clause 35 agreed to)

(Clauses 36 to 40 inclusive agreed to)

(On clause 41--Review)

[The Chair, Conservative, Barry Devolin]

We are now on clause 41.

In your package on page 14 is a proposal identified as NDP-6. It was received from Ms. Crowder.

Is it your intention to move this amendment?

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

Thank you, Mr. Chair.

Yes, I will be moving this amendment.

Part of the reason I proposed this amendment is again based on input from a number of our witnesses. This is in the review and report stage, and I think there are significant areas in which we are really reliant on goodwill, partly through the political agreement. I'm proposing this amendment just to ensure that first nations are included in that review process and that their recommendations will be included in a formal report to Parliament.

[The Chair, Conservative, Barry Devolin]

Thank you.

Are there any other comments on Ms. Crowder's amendment?

Go ahead, Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Chair, it seems to me that the opportunity to make representation is already included in line 13. Why we would need to add it again in line 19 is a question.

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

Mr. Chair, I hope you won't mind if I address Mr. Albrecht. Ms. Crowder's amendment is related to the words “Within one year after the fifth anniversary...” It is important to carefully read clause 41 which mandates a review. Clause 41 reads: “... the Minister shall undertake a review of the mandate and structure of the Tribunal”, then: “In carrying out the review, the Minister shall give First Nations an opportunity to make representations.”

As amended, subclause 41(2) would read:

(2) Within one year after a review is undertaken, the Minister shall cause to be prepared and sign a report that sets out a statement of any changes to this Act, including any changes to the Tribunal’s functions, powers or duties, that the Minister recommends and the representations which have been made by First Nations.

In my opinion -- and I hope Ms. Crowder will agree with me -- there is no extra cost to the public purse. We want First Nations to be involved. This is why this amendment is so interesting. Obviously, we intend to support it. It will give First Nations the opportunity to participate and it will give us the opportunity to adjust in the following year. This is a worthwhile amendment.

[The Chair, Conservative, Barry Devolin]

Go ahead, Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

In the spirit of this process being as expeditious as it is, I don't necessarily want to offend any of my colleagues opposite. However, I would like to suggest that typically the Minister of Indian Affairs does bring forward these types of reports and recommendations as Parliament would request.

I think that the first nations would need to be further defined in this case. I think it would be more appropriate to perhaps actually suggest an entity; however, I'm not even recommending that we proceed that far. The Minister of Indian Affairs has this mandate to do, so I think that to suggest an entity other than the appointed representative of government on behalf of Parliament goes beyond the scope of this place--perhaps not the scope of the bill, but just the process of government that we have.

That is, I think, the strongest argument I can make. I think we would really need to consider just what type of precedent we would be making should we attach another entity to also make this representation. That is the argument I would like to put forward.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Bruinooge.

Ms. Crowder.

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

Thanks, Mr. Chair.

I'll make a couple of points. One is that the bill itself, under subclause 41(1), says:

In carrying out the review, the Minister shall give First Nations an opportunity to make representations.

So the government has already, in this piece of legislation, acknowledged that first nations is an acceptable term.

I'm just suggesting that in subclause 41(2) we add the amendment as proposed that talks about first nations. In terms of precedents, it would be a very healthy and welcome precedent, if what we did was incorporate information and representations from first nations in a report to Parliament.

That's why it comes under subclause 41(2); it is because this is where the report to Parliament will be made. This is a really important statement. In what we've heard from witnesses and from some of the government's own statements about this being a new model for working with first nations from coast to coast to coast, this would represent a very healthy step in that direction. I would suggest that in terms of intent and goodwill, this would be a very positive step, which would be, as I said, a welcome precedent.

[The Chair, Conservative, Barry Devolin]

Are there any further comments?

Mr. Warkentin?

[Chris Warkentin, Conservative, Peace River, AB]

Maybe Ms. Crowder can give me some clarification on what she envisions, then. Would all correspondence that has come from any first nations in the country just be annexed to the report, or what is envisioned? What would be the practical application of this?

[The Chair, Conservative, Barry Devolin]

I'll let Ms. Crowder answer this before I go to Mr. Bruinooge.

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

Thanks, Mr. Chair.

Thanks for that question.

I think it has to be more than an annex to a report. If the intent of this particular clause on reporting is to actually set out a statement of any changes to the act, including any changes to the tribunal functions, powers, or duties, I would hope it would be a joint process that looks at how this legislation has unfolded over the five years, where the problems have been, and what the potential solutions are. It would need to be incorporated into the report and truly reflect the feedback and the experience of first nations in this important five years. We've heard many concerns from witnesses, and if there are problems with it, it would be important to incorporate that information into the formal report to Parliament and not have it as an addendum or an annex.

[The Chair, Conservative, Barry Devolin]

Mr. Bruinooge.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

As Madam Crowder already noted, this asks for representations from first nations groups, and there's no disagreement on that. However, my argument was that we would in my opinion be calling upon a new entity to be making that recommendation back to Parliament. Should a group of first nations, including the AFN, come before a committee, I believe the committee could then make an additional recommendation, which would utilize the existing system that we have here in the House of Commons.

The biggest problem with this is that I just can't imagine another circumstance where we would be providing a non-government entity with this opportunity. The political agreement contemplates some of the elements that we don't have the ability within legislation to cover, and the AFN would be able to clearly state all the changes they want to see at that five-year mark. I believe that not only would this committee give a hearing to them, but clearly Canadians would hear that message through all of the fora that we have.

I just see this as something that probably isn't going to diminish the chance for the first nations people across the country to clearly state their issues with this bill. At the same time, I just think this is beyond what we should attempt today.

[The Chair, Conservative, Barry Devolin]

Thank you, Mr. Bruinooge.

I have Mr. Warkentin, and then Ms. Crowder again.

[Chris Warkentin, Conservative, Peace River, AB]

I'm trying to get a grasp on this. My concern is that we heard from aboriginal communities from across the country, representing their own communities, and what we consistently heard was that they didn't want other people speaking on their behalf. There's absolutely a desire to see aboriginal people speak on their own behalf with respect to this process in a review.

But we haven't spelled out anything concerning the practical aspect of it. I'm concerned that what we might have, if the minister has heard from certain groups and includes that input but doesn't have a process to consult all aboriginal people, is a piecemeal situation, and that would exacerbate the concerns that some of the aboriginal people have communicated to us in this process. That's my concern.

I have no problem with our asking the minister to include verbatim all correspondence that he's received regarding this process from communities all across. But I don't think it would be wise of us to call on the minister or call for the department to condense their interpretation of what has been said by individual groups and then publish it as some type of fact. We might exasperate those folks who seem to feel that they're already out of the process and might be giving an additional pedestal for one segment while diminishing the perspective that may be just a silent perspective out there.

[The Chair, Conservative, Barry Devolin]

Ms. Crowder.