Indigenous and Northern Affairs Committee on March 1st, 2011

[Colleen Swords]

After that, it would be up to the first nation to decide if they're not satisfied with the result of the assessment. If, for example, they're told, “We don't think there's a lawful obligation, and therefore we're not going to negotiate”, the way the tribunal act is set up is that the first nation then has the option to go to the tribunal.

So it's very hard to say how long it will take, because--

[Larry Bagnell, Liberal, Yukon, YT]

Based on how long it's taking right now, if it carries on exactly as it is, when would they all be settled?

[Colleen Swords]

Anik, do you want to take that one?

[Anik Dupont]

What happens is that with every claim, once it is filed, there's a three-year timeframe. So as we keep getting claims, it takes three years for assessment, plus another three years for negotiations. We make best efforts to conclude the settlements within that three-year mark, but they may run over. It's difficult to say, because we don't know what's coming in. There's been a constant stream of claims being filed.

[Larry Bagnell, Liberal, Yukon, YT]

Okay.

Let's go to the claims over $150 million. You said the only ones were the ones in the inventory. How many is that?

[Colleen Swords]

Again, it's difficult to determine exactly the number that for sure are over $150 million. I want to start with a bit of a caveat. Sometimes people look at a first nation's set of claims and say they're over $150 million, but in fact there could be 10, 15 or 28 smaller ones that together add up to more than $150 million. In the inventory that we had, there were six that we thought or the first nation thought were over $150 million.

One which we've just settled is Bigstone Cree, although in fact it's one of the ones where there are actually three subcategories to it, so technically it's not over $150 million when you think of it as a separate individual.

There's the Fort William boundary claim, which was initially thought to be just over $150 million, but it has been settled for under $150 million.

There are four others where we're still in discussions. Those four others are ones where it remains to be seen whether they're over $150 million or not, but the first nations believe that an individual single claim is over $150 million. There's the Dundee township specific claim for Akwesasne. There's--

[The Chair, Conservative, Bruce Stanton]

D'accord. Just go ahead and finish up. We are over time.

[Colleen Swords]

There's the Seigneury of Sault St. Louis specific claim for Kahnawake. There's the Coldwater-Narrows specific claim, and there's the 1910 surrender specific claim for Siksika.

Again, I add the caveat that those are ones where the first nations have indicated they believe their claim is more than $150 million.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Bagnell.

It is now over to Mr. Lemay for seven minutes.

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

Thank you all for being here.

I listened very closely to what you said, and the lawyer in me quickly rose to the surface. I don't want to spend half the day on it, but as far as the Specific Claims Tribunal of Canada goes, everything is now settled, things are moving along and it is going well. The feedback and the reports suggest that it seems to be on the right track.

Ms. Swords, I am having a bit of trouble with your numbers. I met with representatives of the Six Nations, and they have several billion dollars in claims. I am referring to the Six Nations band in and around Toronto. Do you make a distinction between specific claims and land claims? Do you see a fundamental difference there, or can they be dealt with together?

[Colleen Swords]

Mr. Lemay, I will answer in English, if you do not mind.

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

Fine.

[Colleen Swords]

I apologize, but I want to be as clear as possible.

Yes, there's a very big difference between a land claim and a specific claim. Specific claims relate to a claim under a treaty where there's an allegation that the government didn't fulfill the treaty or in some way didn't do what it had promised to do, or it can relate to mishandling of assets or funds of a first nation. Land claims relate to when there wasn't a treaty put in effect in the first place and there's still an outstanding claim to land.

You raise an interesting point on the Six Nations. I asked the same question myself: where do the Six Nations fit in? The answer is that they fall into that category where they have about 28 different specific claims. One of them was settled, but there are another 27 individual ones that collectively may add up to over $150 million, but individually none of them does. They're currently in litigation.

If you remember, the Specific Claims Tribunal process is an alternative dispute resolution process: you negotiate, and failing negotiations, you go to the tribunal. The 27 Six Nations specific claims that aren't resolved are in litigation. We're also engaged in trying to have discussions with them about how we handle the 27. Do we try to deal with individual ones? Do we deal with them collectively? It's a very complex file.

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

Not only is it a complex file, but it is also one that is very hard to approach. To my mind, it is the approach that matters.

The Mohawks, who will be appearing before the committee even though we have met with just about all of them here, do not recognize or have a hard time recognizing the Assembly of First Nations. They are totally off on their own, whether it be the Akwesasne, Kanesatake or Kahnawake community, and that is just in Quebec. I will let my Ontario colleagues speak to the communities in Ontario.

Is there no way to resolve disputes through mediation, a mediator, or if we take the idea a bit further, through binding arbitration? As you, yourself, said, you still have to go to cabinet for claims over $150 million. So government intervention can still impede the negotiations process, given that you have to seek a mandate from cabinet, which often results in an altered mandate and so forth. But if these files were put before the Specific Claims Tribunal of Canada, the tribunal's decision would be final and conclusive, and would not be subject to appeal.

I read everything produced by the Senate on the topic, and I have the same question. Would it not be possible to pursue mediation, for example, or even binding arbitration that would be binding on the two parties? Basically, the problem is finding a resolution that is binding on both parties. I am, of course, referring to specific claims valued at more than $150 million. I am not talking about land claims, which are a whole other can of worms, according to what you told us.

I am wondering whether we could not find a solution where you would not always be required, even at the justice level, to go to cabinet, to keep going back and forth for years on end, because it is not a matter of months, but years.

[Colleen Swords]

The process in place with respect to claims over $150 million does require that we go to cabinet. It would be up to cabinet, not up to us, to determine what ways there may be to resolve a particular claim that's over $150 million. It would be necessary for us to go to cabinet, fully explain the whole claim, and then make suggestions about possible ways to resolve it.

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

Forgive me for interrupting, Ms. Swords, but I would like to know who decided on the policy requiring you to go to cabinet. Was it the minister? Was it cabinet? Whose decision was it to have a policy requiring you to constantly go before cabinet? I could not find the answer in the documentation.

[Colleen Swords]

Well, basically, the tribunal act itself says they don't have jurisdiction to make an award over $150 million, so the legislation sets the $150-million limit.

Then it's essentially the ministers in cabinet who've decided that for over $150 million, we need to go to cabinet. I think when Minister Strahl appeared before the committee several times in the past, he has explained that the process for over $150 million requires going to cabinet for a negotiating mandate.

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

Even for the $250 million a year for 10 years, which adds up to over $2 billion, you are required to go back to cabinet?

Let's assume you reach an agreement with Kanesatake for $151 million, would you still have to go to cabinet?

Pardon me, Ms. Swords, the reason I am asking is that our Mohawk friends will be appearing before the committee in a few days, and I would like to be able to give them the answers to these questions.

[The Chair, Conservative, Bruce Stanton]

Could you give a brief answer?

[Colleen Swords]

I hope that if the claim were to be resolved for over $150 million, there would be some way to resolve it quickly, but essentially, over $150 million, the Minister of Indian Affairs does not have the authority to settle pursuant to the specific claims policy that has been in place under the Justice at Last initiative. For anything over $150 million, he has to go to cabinet.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lemay.

It is now over to Ms. Crowder for seven minutes.

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

Thank you, Mr. Chair.

Thank you for coming before the committee today.

I, too, have a couple of questions on numbers. I pulled this off the website yesterday, the “National Summary on Specific Claims. It's from February 28. Is this the most up-to-date record of the numbers? It says there are 526 claims in progress, 893 concluded, and 77 in active litigation. Are these the most up-to-date numbers?

[Anik Dupont]

Yes.

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

What I'm understanding you to say is that since the coming into force there have actually been 109 brand new claims filed. These would be claims that were not refreshed. These would be brand new claims.

[Anik Dupont]

Yes, that's correct.