Indigenous and Northern Affairs Committee on March 3rd, 2011

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Chair.

Mr. Justice, in my review of this, I was thinking of the simplified procedure, rule 76, at the Ontario bar. In some regards, it's an opportunity for the parties to have principles of mediation and negotiation and facilitate an end to the process without an actual hearing. I think the tribunal expects to resolve the majority of grievances referred to it through mediation and negotiation rather than a hearing. The judges will have the ability to work with parties to help them focus on one or two core issues, and once those core issues are identified, the parties get a bit of a reality check. Sometimes that has a way of facilitating a resolution.

My question to you, Mr. Justice, is how this expectation is consistent with the mandate of the tribunal to make a final and binding decision and to do so in as expeditious a manner as possible?

[Justice Harry Slade]

Those two objectives on the surface seem somewhat at odds. To my mind, we are really guided by this legislation being one of several initiatives toward reconciliation. The preamble itself recognizes what our Supreme Court of Canada has often said: that the appropriate forum for the resolution of these often sensitive claims is negotiation.

In our regular courts, of course, judges today approach case management with a view to proportionality of pretrial procedures to the magnitude of the matter under litigation. That's appropriate for the tribunal and perhaps even more necessary. We're going to get every case into case management as quickly as we can, try to find out what the core issues are, and assist the parties toward a focus that enables effective negotiation.

We don't propose just to let them go and say, “Goodbye and come back when you need to see us again”. We'll require follow-up. If the matter simply isn't going to progress toward a consensual resolution, our intention is to schedule them to be heard without excessive delay: to shift them into high gear to get their evidence and witnesses organized, to deal where necessary with protocols for the introduction of oral history evidence that's respectful of the source of such evidence, and to do all the things they need to do to get to a hearing and get on with the hearing.

There are always points along the way where influence can be brought to bear to get people back to the table.

[Greg Rickford, Conservative, Kenora, ON]

Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Rickford.

Monsieur Lemay, vous avez quatre minutes.

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

Thank you, Mr. Chair.

I certainly cannot impose any obligations on you. I think the first priority is to ensure that the tribunal operates independently, even though it will not become operational on April 1 and will be delayed by a month or two. Above all, no request should prevent you from moving forward because people might think that the tribunal was still part of the Department of Indian and Northern Affairs, which would create a potential conflict of interest.

I completely agree with what you said about the current fiscal year and the 2011-2012 fiscal year. There are four concerns that need to be addressed. And I think that is extremely important.

I am also on the Standing Committee on Justice and Human Rights. When Minister Nicholson appeared before that committee to explain Bill C-130, pursuant to which other judges would be appointed, he said that the registry of the tribunal would be located in Ottawa, but that the judges would remain in their respective provinces. I would humbly and respectfully say that I cannot see the judges in Vancouver or Winnipeg, with all due respect to them, travelling to Quebec to hear a specific claim. The same goes for the judges of the Superior Court of Québec going to Ontario or elsewhere to hear a case involving a specific claim. I felt better about that, but now, I must admit you are giving me some cause for concern. To my mind, it was obvious that the judges appointed to the tribunal would continue to perform their duties. They would stay in their judicial districts but be charged with certain functions of the Specific Claims Tribunal of Canada. That is what we were told at the Standing Committee on Justice and Human Rights in an effort to fast-track Bill C-130.

This morning, then, am I to understand that that may no longer be the case or that I misunderstood? Will that continue? Will the judges remain in their jurisdiction, in other words, in their registry? In the case of the Superior Court of Québec judges, obviously, Quebec is footing the bill, and we were ready for that. We were told it was the same for British Columbia, Manitoba and Ontario. I don't think a lot of negotiation is necessary. That is how it is, otherwise this registry will not work.

[The Chair, Conservative, Bruce Stanton]

I appreciate that you might be in a somewhat delicate area there, but do your best.

[Justice Harry Slade]

Well, thank you, Mr. Chairman.

It's critically important. I can only speak for myself, of course, but if I were in Vancouver and considering going on the tribunal part time, I would wish to know where I was going to work. Of course, with almost half of the claims arising in B.C., it is entirely appropriate that judges from that part of Canada would be able to hear these cases.

I would think that there will be hearings all over every province, and not necessarily in the major centres, but the question remains that if a judge is wondering about going on the tribunal for a period of six months, he or she will naturally want to know where the office will be and who the staff will be. Because the provinces provide courthouses and staff, it is a matter for resolution between the federal government and the provincial governments on the use of those facilities. With respect, it's not for the tribunal to go out and try to arrange this, because it's a matter of the fiscal relationship between Canada and the provinces.

Monsieur Lemay, I've read the Hansard, too, and I saw the very references that you referred to.

[The Chair, Conservative, Bruce Stanton]

Merci, monsieur Lemay.

Ms. Crowder.

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

Does the tribunal have the ability to award costs?

[Justice Harry Slade]

Yes.

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

Okay.

[The Chair, Conservative, Bruce Stanton]

Justice Slade, to you and your team with us today, I know that you gave this appearance very careful consideration. Frankly, we're delighted that you chose to take the time to join us. I think it will very much help inform our study that's in front of us right now. Thank you.

Members we will bid our guests adieu, suspend briefly, and then rejoin each other in camera for the remainder of our meeting.

[Proceedings continue in camera]