Indigenous and Northern Affairs Committee on Feb. 10th, 2009

[John Duncan, Conservative, Vancouver Island North, BC]

I want to ask you this morning about your attendance at the UN periodic review. We can talk in this group about a lot of progress that's been made, and we can read the press reports from the periodic review, but was there any recognition from anyone in the review about the progress that's been made on specific claims, comprehensive claims, self-government initiatives, and those kinds of things? Nothing that was reported--certainly that I read--talked about any of that.

[Michel Roy]

I was part of the delegation last week on that review. The partnership we developed for the joint drafting of legislation on specific claims has been identified as the best practice, in terms of consultation and partnership with aboriginal groups. We were working with the AFN on that project. In the context of the General Assembly, where all the countries were making recommendations to Canada, a lot of recommendations were related to the fact that we should be moving forward in the context of comprehensive claims and resolving claims.

We heard some comments about extinguishment of rights that we have to clarify over there, because that is not the position of Canada now. We do not ask first nations to extinguish their rights when we're negotiating comprehensive claims, but that's the kind of tone they had over there. So we corrected the facts with the different nations that participated in the review. But grosso modo it was quite positive, with good recommendations on moving forward with some of those issues related to aboriginal people in Canada. There were a lot of comments about violence against women, asking Canada to really do something about it--and for aboriginal women too, in that sense.

[The Chair, Conservative, Bruce Stanton]

We will proceed to the second round of five minutes. Just as a reminder to all members, when we get down to five minutes, it's a little tougher to put your questions, so try to remember you have to fit the respondent's time into that time slot as well. I appreciate your understanding.

We'll proceed to Monsieur Bélanger.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Roy, could you please tell us a little about the notion of the honour of the Crown?

[Michel Roy]

I think Mr. Billingsley could probably give you a more fleshed out answer to that question. The notion of the honour of the Crown is really a matter of approach. So, when the federal Crown goes to the bargaining table, you always need to bear in mind that there is already a fiduciary role between the federal Crown and the aboriginal groups. And we're not there to... How should I put this? It's not like the bargaining that goes on in a workplace environment where people are trying to get the best deal for their own group. As far as we're concerned, we always need to take into account the best interests of the aboriginal group with which we are negotiating.

We're not there to put together a labour relations deal between a union and management, for example, where each side is really trying to look after its own interests. Under this process, you really need to bear in mind the best interests of the aboriginal groups when reaching an agreement. We look for an agreement which will serve the interests of both the aboriginal group and the federal Crown, and that will strike a balance between the interests of both parties and those of the provinces, when they're involved, of course.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Can you also tell me about the Crown's obligations with respect to this concept and of the Crown's obligation in relation to the court's decisions?

[Michel Roy]

We need to make sure, for example, the aboriginal group is getting the best possible advice from a third party, that it has access to the legal services, and financial advice, for example, on a financial issue, or something to do with financial assessment. When need to make sure they get the best possible service in terms of advice and recommendations, so that they don't just have to take the federal Crown's word for it. We make sure that they get the necessary services, advice, and opinions, even if it means we pay for it. So that's the way things are done.

Perry, is there anything you'd add to that?

[Perry Billingsley, Director General, Policy Development and Coordination, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development]

In many ways the concept is perhaps not as well defined as it could be, but I find it often boils down to good manners at the negotiation table. I'm most familiar with the concept in the context of negotiations and in the context of self-government.

Michel has alluded to the support that is provided to negotiating first nations to aid them in having appropriate legal representation and financial representation. The concept also covers issues such as sharp bargaining.

The responsibilities of the crown in the context I'm most familiar with is in the transition from an Indian Act relationship to a self-government relationship, where a first nation will be taking on many more responsibilities vis-à-vis their own citizens. In that moment of transition, Canada has a number of responsibilities that it must fulfill to the individuals in that community because of the move from the Indian Act, where we have a great many responsibilities, and we need to make sure that those responsibilities are met in moving to a self-government arrangement. That includes things like protection of individual rights.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

I'm interested in terms of the obligations as well, in terms of consultation that it imposes upon the crown. What, if any, impact did this concept have in terms of the court decisions and the decisions by, say, the public works department not to sell certain properties in Vancouver?

[Perry Billingsley]

I'm afraid that on the decision to not sell certain properties in Vancouver I have no specific information.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Fair enough.

[Perry Billingsley]

In terms of consultation, yes, it has a great impact on how consultations are conducted. In the business we're in, negotiations, of course, are the principal vehicle of consultation that we use, although the notion of consultation--and tied to the honour of the crown--also extends to finding better ways to move our negotiation processes along. Michel referred to the common table process in British Columbia, where we're working with first nations to understand what it is about our processes and mandates that causes problems.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Bélanger and Mr. Billingsley.

We now proceed to Mr. Albrecht for five minutes.

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

Thank you, Mr. Chair.

I want to follow up a bit on the Specific Claims Tribunal Act. You mentioned that it came into force on October 16 but that no cases have been filed. I think that's totally understandable.

My understanding is, and those of us who were around the table recognize, that the AFN had a very integral part in the drafting of that legislation and its ultimate adoption. I was wondering if you could briefly outline some of that process in terms of buy-in by not only the AFN but its component communities. Also, subsequent to the passage of the act, and now its implementation in October, what kind of feedback are we hearing in terms of buy-in and the willingness for first nations communities to use this vehicle?

Finally, perhaps you could briefly comment on the average waiting time. You indicated that it's currently around 15 years for a claim to be settled. Do you have a prognosis for when this is fully implemented? Will that time decrease?

[Michel Roy]

Thank you for the question.

To clarify, when I talk about 15 years to resolve a claim, it's in relation to comprehensive claims; it's not the specific claims.

Under the specific claims new legislation, we now have three years to make decisions on the validity of the claim and we have three years to negotiate. After the three years, the first nations could take us in front of the tribunal for a decision. It's six years maximum if we go to the maximum of the two periods, which is a big improvement compared to where we were before. We were at 13 to 14 years of delay to resolve a specific claim.

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

To get to the heart of my question, is there a feeling in the first nations communities that this represents hope for the future in dealing with this large backlog? Is that a fair statement?

[Ralph Brant]

Yes, it's quite a significant turnaround on the part of first nations. They had the opportunity to contribute to this process. They now believe that the government is finally doing something about processing these claims in a timely and fair manner.

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

Again, the specific claims have to be under the $150 million, and the comprehensive ones are beyond that.

[Michel Roy]

Yes.

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

I represent a riding from southwestern Ontario, and I want to ask something about the comprehensive claims. The ongoing dispute involving the Six Nations communities affects aboriginal people and non-aboriginals alike. It affects the economic development and the potential of the entire community. Many of these communities, especially those surrounding Caledonia and Brantford, are having a difficult time.

I don't expect you to go into details, but I would appreciate it if you could just give me a sense of the progress that we're making in the negotiations with the Six Nations community.

[Michel Roy]

We have been negotiating with Six Nations for a few years now, and we are negotiating with the province. Last spring we put forward an offer to resolve one claim. The first nations came back with a counter-offer, and then we went “on pause” for a while. Now, for the past two weeks, we have been back to the table and we have other meetings planned. Negotiations are back on track. The parties want to find a way of getting to a solution.

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

In your opening statement, you went through a number of statistics. You indicated that 40% of the outstanding claims have been solved. I don't know what period of time you were referring to. The cost, I believe, was some $2 billion. It would be helpful for me as a person who doesn't have the global picture of the first nations communities to have a bit of a spreadsheet to look at these claims. I know it would be a huge spreadsheet—you have hundreds of claims. But for the future, it would be helpful if we had some general graphic picture of the progress of these claims.

[Michel Roy]

We can provide you with that kind of information. We have that information on the specific claims—where they are and how many have been resolved.

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

It would also be helpful if you included the length of time they've been in negotiation.

Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Albrecht.

And Mr. Lévesque now has the floor for five minutes.