Indigenous and Northern Affairs Committee on March 1st, 2011

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

Are there other differences in the view...? It seems a large one in terms of first nations ability to make a presentation directly to cabinet. Are there other major differences in the process over $150 million?

[Colleen Swords]

Well, the process over $150 million, as I said, is really going to cabinet, so it's not a process that has the same kind of timelines as the Specific Claims Tribunal and the process for under $150 million.

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

So timelines are an issue in terms of...?

[Colleen Swords]

I don't know about exactly timelines, because I'm not sure how you ever put a timeline around cabinet, and I'm not sure that—

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

I guess what I'm trying to get to at the heart of it is.... We'll hear from the Assembly of First Nations, but it's always interesting to hear how the Assembly of First Nations views the process versus how Indian and Northern Affairs views the process. I'm trying to get a handle on, from your perspective, what are the key stumbling blocks around the Assembly of First Nations and you and whoever else is involved—I guess Justice—for the process for those greater than $150 million.

[The Chair, Conservative, Bruce Stanton]

We are out of time there, so just a short response, if we can.

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

Thank you.

[Colleen Swords]

If we could, we'll answer on the number of times we've met.

[Anik Dupont]

We'll have to reconfirm later, but we had about six or seven meetings, and the think tank with the AFN.

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

Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Crowder.

Let's go to Mr. Rickford for seven minutes.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Thank you to the witnesses. Your speeches this morning actually answered a number of preliminary questions as we embark on this process.

I want to thank the Library of Parliament. The preparation actually gives quite a useful breakdown in appendix A on the specific claims process. It's familiar to me as a nurse because it's laid out in an algorithmic kind of way. It's quite useful to sort of follow through that.

I want to also congratulate you on your important work on the backlog. I assume that the ability to work through this isn't just the fact that you, as a matter of policy, place a great emphasis on having a departmental finely tuned machine, but also the fact, it appears to me, that it was so extensively engaged and consulted on in cooperation with the AFN that the government was able to bring something forward that everybody could work with. Congratulations in that regard.

I was actually with the minister in Fort William not too long ago when we made that announcement. I can tell you that these presentations in the community go a long way to deal with long-standing issues that really put the nation in the best position to move forward. We're excited for Fort William and, to that extent, the City of Thunder Bay as things go.

I have a preliminary question, born a little bit out of curiosity, but attached to the substantive point I want to try to flesh out. My first question is, why has a limit of $150 million been put on settlements since Justice at Last? Where does that figure come from? How do we get there? This is a segue into my hopefully meatier question.

Ms. Swords, maybe you can answer that.

[Colleen Swords]

Certainly, Mr. Rickford.

I might mention, too, as you're looking at this chart, I agree that it's a very handy one.

[Greg Rickford, Conservative, Kenora, ON]

It's great, yes.

[Colleen Swords]

It's on the department's website, and it's in the materials in the specific claims process that are widely disseminated, so it's a good document.

The $150 million that was in the Justice at Last initiative really is a bit of a bright-line test. It was an attempt to try to say that we want to put in place a process, an alternative dispute settlement process, that will allow claims that are under a certain amount to proceed more quickly.

The ones that are over $150 million are considered to be, by virtue of their size, their complexity...and sometimes complexity just means they go back 200 years, and there's a lot of research needed to really try to evaluate them. The theory was if you remove them from the process, then you can move more quickly on the ones that are under $150 million. You can deal with a set amount of money, the $2.5 billion that has been set aside to deal with the ones that are under $150 million, and deal with them more quickly.

[Anik Dupont]

Absolutely. We had a claim that we settled this year in B.C. that was a highway-taking; it took us close to seven years to resolve because we had to deal with the municipalities, the rights-of-way, and getting all the necessary permits. The claim itself was worth $300,000. Sometimes the complexity is there even below $150 million.

[Greg Rickford, Conservative, Kenora, ON]

To go back to you, Ms. Swords, you raised this in your presentation. How do you decide.... Or, let's say, what is the determining factor--or factors--to deal with a claim that may go over $150 million where there's an aggregate of claims from one specific community? What are the factors there to say, okay, under the subcategories, we're going to deal with these individually as under $150 million, versus saying to put them together and it would go into a claim that would exceed $150 million?

For me, that's a difficult question, so I would like you to take the last few minutes that I have and speak to that. For me, as I understand this, I want to be clear on those issues.

[Colleen Swords]

I'm going to ask my colleague from the Department of Justice to answer as well.

I think there's an issue around whether all of the claims that you might want to aggregate would indeed be ones where the federal government has a lawful obligation.

[Greg Rickford, Conservative, Kenora, ON]

Fair enough.

[Colleen Swords]

In some cases they might not be. You may want to deal with them together process-wise, but in fact, vis-à-vis the process itself, they are each individually under $150 million, legally speaking.

I'll ask my colleague to respond.

[Pamela McCurry]

Sure. I can add a little bit to that.

When we're looking at the claims for the purposes of determining whether or not we think there's an outstanding legal obligation, the claims would be based on sets of facts. If we were to look at a number of claims and determine that these individual claims were actually based on the same set of facts and raised the same set of issues, then we would likely suggest that we could look at these things together.

However, often the claims are not based on the same set of facts and don't raise the same sets of issues. They can be quite distinct even though they come from the same first nation.

[Greg Rickford, Conservative, Kenora, ON]

I understand.

How much time do we have?

[The Chair, Conservative, Bruce Stanton]

You have another minute, Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thanks.

Very briefly, I'll just ask the last question here. I was looking through how the specific claims process relates to the Specific Claims Tribunal. I just want to sort out a couple of details.

What will the purpose of mediation be at the tribunal? Obviously, I have a basic assumption that negotiation will have preceded a reference to the tribunal. But is there a process built in there somewhere, where there's ongoing discussion? Would that come in the form of case management, for example?

[Pamela McCurry]

Yes. As part of the discussions with the tribunal in October 2010, that's when the issue of mediation was really discussed. The tribunal members would like to.... It's authorized under section 12, I believe, that they can make rules respecting mediation. Our perspective is that mediation is appropriate in the context of case management to improve efficiencies in terms of resolution.