Thank you, Mr. Chair, and thank you for the invitation to appear before you today.
Appearing with me, as you've said, is Ms. Deborah Friedman, who is the general counsel for the specific claims group of the Department of Justice and the legal services unit at INAC.
The Department of Justice and the Department of Indian Affairs and Northern Development are key partners in implementing Canada's Specific Claims Action Plan, known as the Justice at Last initiative and undertaken in June 2007. Implementing that plan has been and remains a priority for the Department of Justice.
I'd like to briefly do three things: first, tell you about the role of the Department of Justice in the establishment of the Specific Claims Tribunal, including the appointment process; second, update the committee on our department's efforts to clear the backlog of specific claims; and finally, give you an overview of some of the internal process efficiencies we've put in place to speed up the process.
As my colleague, Ms. Swords, has said, the Specific Claims Tribunal is the cornerstone of the Justice at Last initiative. It is an independent federal body, composed of judges, and it has the authority to make final and binding decisions on Canada and first nations on the validity of specific claims that have not been resolved through negotiations. The tribunal can award compensation to a maximum of $150 million.
Most recently, on November 26, 2010, the Minister of Justice announced the appointment of the current members for a further five-year, three-year, and one-year term respectively. As well, the minister announced the addition of three justices to the roster of Superior Court judges who may be appointed to the tribunal at a later date. These are: Mr. Justice W. Larry Whalen, of the Superior Court of Justice of Ontario; Madam Justice Barbara L. Fisher, of the Supreme Court of B.C.; and Mr. Justice Paul Pearlman, also of the Supreme Court of British Columbia.
I'd like to take a moment to comment in greater detail on the judicial appointment process of the Specific Claims Tribunal members. The Minister of Justice, of course, plays an important role in the appointment process. However, the selection of judges to be members of any tribunal must be consistent with constitutional principles around judicial independence. Chief justices alone are responsible for all matters touching on the judicial functions of their courts, including direction over the assignment of judges. This principle also applies to decisions regarding the assignment of judges to acting capacities other than as judges of their courts and includes judges sitting as members of the Specific Claims Tribunal.
The chief justices must be free to decide which judges will be available to hear tribunal matters. In doing so, they take into account the overall priorities of their courts and their assessment of the experience and capacity of individual members of their courts. As well, in order to protect their security of tenure, individual judges must also consent to any proposed appointment to a tribunal.
In the case of the Specific Claims Tribunal, it's important to note that the political agreement signed by the Minister of Indian Affairs and the National Chief of the Assembly of First Nations provided that the national chief “will be engaged in the process for recommending members of the Tribunal in a manner which respects the confidentiality of that process”. This political agreement was negotiated under the auspices of the Canada-AFN joint task force.
The intention of the commitment was to publicly signal that the views of the national chief on the qualifications of potential tribunal members would be taken into consideration, but the ultimate decision in relation to the appointment of tribunal members remains that of the Governor in Council. I want to make it clear that the provision in the political agreement in no way compromised the integrity of the appointment process. This issue was raised by the chairperson of the tribunal in his annual report, and it has been satisfactorily addressed with the tribunal members by the Minister of Justice.
The Minister of Justice therefore received the views of the AFN on the qualifications and experience of potential tribunal members, and he shared them with the chief justices of the relevant courts. The chief justices subsequently provided the Minister of Justice with the proposal of names of those to serve on the tribunal. Ultimately, the minister made recommendations to the Governor in Council, who is, as I mentioned, under section 6 of the act, the person actually empowered to make the appointments.
As you can see, the appointment of the members of this tribunal was a complex and time-consuming process that involved a number of steps and important considerations. Once the members were appointed, the tribunal became a fully functioning, independent administrative body. Neither government nor any other institution can tell the tribunal how to conduct its business.
Under the Financial Administration Act, the registrar of the tribunal carries out the functions of a deputy head of the registry and, as such, is responsible for the overall management of tribunal operations and budget, under the direction of the tribunal chairperson. The registry is a federal government department that reports through the Minister of Indian Affairs to Parliament. This is the usual reporting process for federal boards and tribunals and does not compromise the independent nature of the tribunal.
The tribunal has consulted with the Department of Justice regarding matters of administration. For example, in July 2010, we met with the chairperson to hear concerns about operational issues. Justice was able to suggest approaches that would assist the tribunal in a manner that was appropriate in light of its arm's-length relationship with us.
The tribunal is a statutory body with the power to make its own rules of process and procedures. That said, pursuant to a political agreement between the AFN and the Minister of Indian Affairs, officials from the Department of Justice and the Department of Indian Affairs worked together with the AFN to prepare a joint submission on the proposed rules of practice and procedure. This submission was provided to the tribunal in December 2009.
The tribunal members of course published their own version of the rules of practice and procedure in June 2010. Canada, through my office, was one of 11 stakeholders that provided comments to the tribunal. These 11 stakeholders later formed an advisory committee, which met with the tribunal members in October 2010.
Following these meetings, the tribunal released a final draft of the rules. The draft sets out a flexible process, and it also makes reference to practice guidelines, which to our knowledge have not yet been developed. The Department of Justice has offered assistance to the tribunal as part of the advisory committee if there are any further discussions on the development of these practice guidelines.
The tribunal is now working closely with the legislative drafting section of the Department of Justice to finalize the rules for publication in the Canada Gazette, part II. It's expected that the rules will be in place shortly and that first nations will be in a position to file claims with the tribunal by the end of April 2011.
I'd like to now speak very briefly about the progress of the Department of Justice in clearing the backlog of specific claims in the inventory. This is of course an integral component to the success of the Justice at Last initiative.
As you've already heard, the Specific Claims Tribunal Act sets out strict timeframes for Canada to assess and respond both to new claims and to those claims that were in the inventory at the time the legislation came into force. At that time, there were 541 claims in the inventory, many of which were waiting for the Department of Justice to provide legal advice.
I'm very proud to report that we have made significant progress, and that as of February 2011, the Department of Justice has only 95 legal opinions to prepare in respect of claims in the backlog. In other words, we've cleared approximately 80% of the backlog that had accumulated over 30 years.
In order to achieve this success, the department recognized that we needed to do more than receive new resources. We needed to change our approach. We worked closely with the Department of Indian Affairs to identify opportunities for reducing the volume of materials reviewed and to ensure that the packages were complete with documents before they were submitted to the department for review.
We also implemented a number of internal process efficiencies aimed at reducing the length of time it took us to prepare legal opinions. We structured work teams in order to leverage knowledge and expertise, we bundled similar types of claims, and, where possible, we prepared foundational legal opinions respecting those groups of claims.
Most significantly, the Department of Justice developed a streamlined process for providing legal advice on smaller-valued and less complex specific claims and provided that within no more than 20 working days. Considering that a large percentage of the claims in the inventory are of a smaller value, use of this expedited process has had a tremendous impact on our success.
For more complex claims with an anticipated value that is of larger value, but under $150 million, the department continues to prepare a standard legal opinion; however, this work is now being done within 60 days. This is a significant reduction in time compared to a period in which opinions took sometimes several years to complete.
There is still much work to be done, but the department is dedicated to ensuring that all remaining backlogged claims receive a legal assessment and put the Minister of Indian Affairs in a position to respond before the three-year statutory time limit.
I'd like to turn very quickly to the department's role in respect of claims that are valued at over $150 million. When a claim is filed with the Minister of Indian Affairs and Northern Development, the size of the claim is not always known. The Department of Justice is asked to prepare a legal opinion pursuant to the specific claims policy on whether an outstanding lawful obligation exists. Where the size exceeds the limit of the policy and the tribunal's jurisdiction, meaning it's valued at over $150 million, following a legal opinion having been given, we continue to play a supporting role in cabinet's consideration of these claims.
In closing, the Department of Justice remains committed to the successful implementation of Justice at Last to the benefit of first nations people and all Canadians.
Thank you very much for this time. I welcome the opportunity to answer any questions of the committee.
Merci.
