Indigenous and Northern Affairs Committee on March 1st, 2011

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Are there any other comments from Justice?

[Pamela McCurry]

The statute—and Justice at Last in general—goes a long way to achieving the objectives it set out, which is all about reconciliation. It takes the form of better transparency, better access, and much greater efficiency. All of that does add up to justice.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

This is a subjective question, but can you comment on the response of first nations people to these initiatives? Is there a sense of optimism, a sense of commitment to the process? One could envision a world in which they were totally outside the process, alienated and unhappy. I'm getting the sense that's not the case and people are committed to getting this done together.

[Anik Dupont]

We have a bit of both. There are some first nations that really like the process because it has been streamlined, and they know that if they file a claim, in three years they will get a response, and the negotiations are more focused.

But there's a balance. We also hear from our negotiation tables that first nations feel rushed and pushed through the process. Whereas before Justice at Last sometimes we could be at a table for seven or ten years, now, of course, they feel a bit pushed and shoved because we're getting to the point quicker and trying to do more, so it has been an adjustment for them as well. It's a bit of both.

Of course, in the end they get results much faster, but when they are in the process that's some of the feedback we're getting. You might hear some of that from the people who come before you.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

I can say from personal experience that the McLeod Lake Indian Band specific claims claimants found that as the process got clearer and clearer, the results were better. They were happily surprised that there really was some finality.

Are there any other comments on the certainty, the finality?

[The Chair, Conservative, Bruce Stanton]

Unfortunately, that's about all. Believe it or not, it goes rather quickly.

Thank you very much, Mr. Weston. Do you have just a short comment? I know that some of the other speakers went over time.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

I think for everybody in the room, a sense of certainty and finality is a value we're all striving for, and I'm hearing that we've moved in that direction through this process.

And you're shaking your heads. I'm taking that as a “yes” for the record.

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Mr. Weston.

Mr. Lemay, you have the floor for five minutes.

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

I wish I could be as optimistic as my friend Mr. Weston, who is brimming with optimism. But I am not so sure it is the same everywhere, as we will see in the weeks ahead.

It is easy to file a specific claim when a train, a highway or a Hydro-Québec pole encroaches on aboriginal land, on a reserve. The issue is complicated, yes, but it is still physically tangible. What I am looking for is a solution in those cases where a treaty was not respected, where there are claims. I want a solution that can solve the cases of the Mohawks, the Six Nations of the Grand River band, the communities of Akwesasne and Kanesatake. Those are the main outstanding claims. I know there are many in British Columbia, and I will let my colleagues from that part of the country talk about those, but when I consider the case of the Mohawks, I do not see a light at the end of the tunnel. I am not sure what you think, but I do not see one—and I have tried. When you meet with them, you understand that there are no options.

That is the rationale behind my suggestion. Is there no way to impose a mediation or binding arbitration process in these kinds of cases? Could that be a possibility?

[Anik Dupont]

Thank you, Mr. Lemay.

In the case of the Mohawks, the files are quite complex. The history of Canada and Quebec really come into play. As for the Akwesasne and Dundee files, we have actually made some real progress at the bargaining table, and we are doing a very good job working with the groups. The process is a bit longer, because their approach is different, and we are having to come together on and revise our approach in order to get there. Nevertheless, we are very close to settling a specific claim in this case, and we are in talks with another group.

As for mediation, obviously both parties have to agree to that approach and on the issues that the mediation will cover. Sometimes, that is where the assessment is toughest, because we cannot even agree on the terms of the mediation, or we cannot use mediation for a matter of policy. Our policy is clear, we have parameters we must respect. Sometimes, we have no flexibility. Even if we had a mediator, we could not always go in the same direction as the first nation.

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

So you are bound by the policy in place, and first nations have to know that even before they think about filing a claim. Is it the same with the Department of Justice?

[Pamela McCurry]

Well, we operate within the policy.

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

If aboriginals want to file a claim and initiate a negotiation process, the first principle is to respect the policy. What happens if they do not want to respect it? Does it end there? Do you hit a deadlock?

[Anik Dupont]

Yes, but they can always go through the courts, which is another option.

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

Would there be a benefit in—and this is the lawyer in me talking, whether Ms. Crowder likes it or not—dividing a claim, in order to go before the Specific Claims Tribunal of Canada with two or three claims, where each does not exceed $150 million? Forgive me, but I tend to look at things through the legal lens.

That's a good question, isn't it?

[Voices]

Oh, oh!

[Pamela McCurry]

It depends again on the relationship of the facts. It's not a good idea to try to divide claims where they essentially deal with one set of facts and present one set of issues.

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

In a case involving three communities, would there be a benefit in combining them? Does the process allow for that?

[Anik Dupont]

Yes, that is possible. Certain bargaining tables across Canada have a number of groups present.

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

Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lemay.

I'm going to ask a brief question in one of the government spots. The question is for Ms. McCurry.

In our study we've tended to focus, and we are focused, on those specific claims that are above the $150-million threshold. This gives rise to the question of the degree of involvement of the Specific Claims Tribunal. Is there any role whatsoever for the tribunal in this process?

[Pamela McCurry]

No. The specific claims act, which creates the tribunal, sets an upper limit of their jurisdiction at $150 million.

[The Chair, Conservative, Bruce Stanton]

So not even in the case, for example, when a claim is submitted and the amount is uncertain. What actually establishes the trigger to put it over that threshold? Is it an assertion of what the applicant believes is the value?

[Pamela McCurry]

It's interesting, because I think that often when these claims come in under the specific claims process, the dollar amount is not actually indicated. It's discovered through the process of analysis. It is sometimes indicated, but the--

[The Chair, Conservative, Bruce Stanton]

But there is some justification of that at some point.