Evidence of meeting #50 for Indigenous and Northern Affairs in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
Assistant Deputy Attorney General, Aboriginal Affairs Portfolio, Department of Justice
That's right. If matters are to go to the tribunal, obviously because of the triggers to get to the tribunal you will have had an opportunity to place some value on the claim.
Conservative
The Chair Conservative Bruce Stanton
If that were the case, clearly it would be outside the realm of the tribunal.
Ms. Friedman, your hand is up.
Deborah Friedman General Counsel and Director, Specific Claims Section, Aboriginal Affairs Portfolio, Department of Justice
Just to build on what Ms. McCurry was saying, it's the legislation that puts a limit on what the tribunal can award as a monetary compensation. It is limited to monetary compensation of $150 million. What this would mean is that when a claim is before the tribunal, as often happens in court, you would have an evidentiary record. The tribunal would be considering that evidentiary record to discern the compensation to be awarded. It's going to happen over the course of the process before the claim is in front of the tribunal. The members will be looking at the evidence.
Conservative
The Chair Conservative Bruce Stanton
When they first start out in the process, it may well be that the tribunal could have a role, but it depends. Through the course of the evidentiary process, if it becomes clear the number is over the threshold, then they're into a different process, which you described earlier.
General Counsel and Director, Specific Claims Section, Aboriginal Affairs Portfolio, Department of Justice
The first nation would be aware of the legislation and their counsel certainly would be aware of that upper limit. Similarly, one could draw the analogy of going to small claims court in many jurisdictions, where there is a maximum which the court can award. When claimants file their claims before that body, they're aware of the upper limit. That would be the same case here for first nations.
Conservative
The Chair Conservative Bruce Stanton
Thank you very much.
We'll go to Ms. Crowder for the last question and then we'll wrap up.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Mr. Chair, I have a couple of quick questions.
Going back to claims that are in litigation, I believe that Delta Cree is one of those. I know there was a back-and-forth going on with the government over access to documents in regard to the Delta Cree and the Manitoba hydro project. So they're not included in the specific claims numbers, I assume.
There are 77 claims listed here that are in active litigation. Do we have any sense of how many of those 77 could be claims over $150 million?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
No, I don't know the answer, but we can look—
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Could you? Because that could be a significant workload that's coming down the pike.
General Counsel and Director, Specific Claims Section, Aboriginal Affairs Portfolio, Department of Justice
I would just add that it may not be possible at this stage. If they're in active litigation, the claimants obviously have filed pleadings, and those pleadings may not necessarily set out the dollar upper limit. We could look at that, but it may not necessarily be discerned from that--
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
It could be a significant number. I don't know...of this 77 in active litigation, would that include people like Six Nations, like Delta Cree?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
It would have had to come into the specific claims process and then move to litigation. That's how we track them. Because they can always at some point drop the litigation and want to come back into the process.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Is there a way for us to know how many in litigation are outside the specific claims process?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
Of those 77?
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
No. Can you tell us how many first nations are in litigation around specific claims?
General Counsel and Director, Specific Claims Section, Aboriginal Affairs Portfolio, Department of Justice
Once again, first nations may file before a court and have the matter in litigation, and there are a number of grounds upon which they're bringing that claim. Some of those grounds may mirror the grounds available under the specific claims policy, but in many cases they may be much broader in terms of the nature of the relief they are seeking from the court and the foundation.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
So in other words.... I can't remember the accounting term for this, but maybe somebody could help me out. I mean, there's an unfunded liability out there, right? I don't know if that's the exact accounting term. We have all these claims in litigation and there's going to be an obligation to government at some point.
Do we have a handle on what that might look like? I'm sure departments somewhere have done some sort of estimate about the dollar figures on this.
Assistant Deputy Attorney General, Aboriginal Affairs Portfolio, Department of Justice
We do have figures on the global outstanding contingent liability, but they would be comprised of a number of different things.
Assistant Deputy Attorney General, Aboriginal Affairs Portfolio, Department of Justice
Yes. We do have that, but again, it represents a mixed bag--
Assistant Deputy Attorney General, Aboriginal Affairs Portfolio, Department of Justice
Sure.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Just quickly, I want to confirm what I've heard. The mediation by consent means that both parties have to agree to the mediation, so even in the Justice at Last specific claims action plan, where it talks about mediation, it doesn't actually say that as clearly in here.
So on mediation, the government must agree to mediation. If a first nation signals it wants mediation, the government must agree, for all the reasons you outlined. Is that correct? The government has to be willing to mediate.
Associate Deputy Minister, Department of Indian Affairs and Northern Development
I don't think it's mediation if one party is not agreeing; it's more like some form of arbitration or imposed solution.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
It's been a problem with the land claims implementation when first nations have been willing to mediate and the government isn't willing to come to the table, for a variety of reasons. I understand that. Just so people understand, it's not a tool where a first nations gets to signal what they want to do. The government has to be at the table.