Indigenous and Northern Affairs Committee on March 3rd, 2011

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

Okay. That's problematic, then. My experience with other agencies that have been set up is that often there are budget negotiations that become very painful, and then a significant amount of your time and your senior staff's time is required in order to conduct those ongoing negotiations. I'll just set that aside for a moment.

I have another question around resources. It's two-pronged here. In your report, you outlined the fact that there are at least 74 claims that qualify for filing with the tribunal on the basis of rejection with the minister. Then you go on to talk about the potential numbers.

As of October 2011, there could be as many as 87 claims eligible, based on failure to conclude settlement after three years. That's one part. That's a significant number of claims and I don't know how that workload will line up, but it seems that with an equivalent of six FTEs, it's going to take a number of years to sort those out beyond the three years that are.... So that's one question: resources to actually deal with the claims that are coming through.

Second, in terms of resources, we understood that when first nations brought their claims before the tribunal, there would be additional funds for them in terms of presenting their claim before the tribunal. Are you aware of any allocation of funds for first nations once they get into the tribunal process?

[Justice Harry Slade]

Thank you.

Mr. Chairman and Ms. Crowder, the number of claims that will qualify for presentation to the tribunal has of course increased since my September 30 report. We're estimating—Ms. Lombard will correct me, perhaps—around 102 qualifying right away, on the basis of rejection, and more qualifying on the basis of three years in negotiation. Do I have that more or less correct?

[Alisa Lombard, Law Clerk, Specific Claims Tribunal Canada]

In fact, 74 qualify on the basis of rejection, and an additional 87 or 81 may qualify on October 16, 2011, on the basis of rejection--161 claims--

[Justice Harry Slade]

Yes, and of course there are many claims in the process, and I gather that the rejection rate historically runs around 35% or 40%, so we can anticipate claims becoming qualified for presentation...a considerable number.

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

Are there resources for first nations to present?

[Justice Harry Slade]

Yes. This is something I hear about but I have no personal knowledge of. What I hear is that there are discussions around this, but I really don't know the status of those. And of course, in the interests of a fair process, participants I think need to be resourced, but I cannot really speak to government responsibilities in relation to resourcing. That's outside....

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

No, and my question was simply whether you're aware.

I want to touch now on the rules of practice and procedure. Just so I'm clear on it, I know there were draft rules back in June, and now it sounds as if we've had a significant amount of back-and-forth. I'm not clear about the role of Indian and Northern Affairs and the Department of Justice in the rules of practice and procedure. I'm not a lawyer. I understand that there is this other body—the federal judicial rules—but I guess I'm a little concerned about what Monsieur Lemay touched on in terms of independence.

I'm a little concerned that Indian and Northern Affairs and the Department of Justice have some sort of influence on the rules of practice and procedure. It seems to me that those rules of practice and procedure are essential for judicial independence.

[Justice Harry Slade]

Yes, Mr. Chairman and Ms. Crowder.

The only involvement of INAC in the development of the rules we have prepared and put on our website in both official languages was as a member of the advisory committee. Our act provides that the chair can establish an advisory committee. We did that. We did a lot of good work with the advisory committee and received valuable input from all stakeholders.

We came up with a set of rules that appeared to be quite acceptable to the representatives of both the crown and the first nations and then learned that it was necessary to go through the process under the Statutory Instruments Act. That involves various branches of the Department of Justice. I'll be meeting with them this afternoon and tomorrow.

We've had numerous meetings. I've not seen the slightest indication that anybody is trying to change or alter the process we've provided for in our rules. It's a matter of bringing these into conformity with federal standards.

You take the Federal Court. When they embark on a rules project, they go through the same process. As a section 96 judge and as a long-time lawyer, it all seems a bit tedious, frankly, but I think they do good work. This is just the way it is, and we'll get through it as quickly as we can.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Crowder.

Your turn, Mr. Rickford. You have seven minutes.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Thank you, Justice.

The first challenge I have today is actually asking my question sitting down. I remember fondly my first court appearance. I thought I had a rather eloquent opening statement. I proceeded before the justice, who knew I was fresh out of bar school, and I forgot to stand up.

It was a bit traumatic.

Here I am in front of the justice and I get to sit down. That's the first barrier overcome, Mr. Justice.

[Voices]

Oh, oh!

[Greg Rickford, Conservative, Kenora, ON]

I have, I hope, two questions to get to.

I've scripted the first one to be clear. I'm cognizant of the principles of independence here in your comments with respect to procedurals in substantive fairness and the need for full disclosure and transparency. It has been suggested, Mr. Justice, that if new allegations and evidence are permitted to be introduced at the tribunal, they will not have been considered in the claims assessment process and will not have informed the decision of the minister in accepting or not accepting the claim for negotiation.

Broadly speaking, I was wondering if you can comment. Obviously there would be a larger evidentiary base than what would have been permitted in the initial submission of the claim. I'd like to give you, if I could, a couple of minutes to expound on that matter.

[Justice Harry Slade]

Yes, Mr. Rickford, this was a subject of quite a bit of discussion in the advisory committee. What happens if the claimant wishes to bring forward new evidence not previously presented to the minister in the assessment of the claim?

To my mind, the real question is whether it is or is not the same claim. I think you have to distinguish the claim itself and the basis for the claim from the evidence adduced in support of the claim.

I can't go too far on this question, because this could be a very live issue for decision by the tribunal. I will say that there seemed to be emerging kind of a consensus view that it would take some pretty significant new evidence to cause the matter to loop back through the specific claims branch process. More than that I'm afraid I can't say, because I might actually have to decide the issue one day.

[Greg Rickford, Conservative, Kenora, ON]

I could appreciate that, Justice.

In my second question, I want to perhaps develop some of the issues around the rules of the practice and procedure draft that my colleague Jean Crowder raised. It's understood that a common concern expressed about the first draft of the rules of practice and procedure was that they were too court-like. You mentioned obviously that...and I agree with you, having been involved as legal counsel in the Indian residential school settlement with Justice Iacobucci, which actually was another chance I had to sit down to talk with a Supreme Court justice.

It was further understood that revisions to the rules would be to make them more flexible, but that court-like rules may be engaged at the discretion of the tribunal.

[Justice Harry Slade]

Yes.

[Greg Rickford, Conservative, Kenora, ON]

How does this revision respond to that original concern?

[Justice Harry Slade]

Mr. Chairman and Mr. Rickford, the concern, and a well-founded concern in response to our first draft, was that the rules were too court-like and contemplate an adversarial process rather than a reconciliatory negotiated process. So after meeting with the advisory committee, we redid the rules to ensure that court-like processes would only be available at the direction of the case management tribunal member, so that neither party could present a flurry of applications to the tribunal and force the other party through a bunch of procedures that would be costly in terms of money and time.

It is my view that the availability of these procedures is important, though, because if the claim is to be determined with finality, it is fundamentally important to procedural and substantive fairness that the parties know the case they have to meet. In the specific claims branch process, of course, the crown is obliged to disclose nothing, whereas the claimant has to disclose virtually his whole case. So we're certainly not encouraging an adversarial-like process, but it needs to be transparent and it needs to be fair. So some court-like processes that would be available on application are, in my view, appropriate and necessary.

[The Chair, Conservative, Bruce Stanton]

You have 45 seconds, Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

I appreciate that balancing test or challenge there, because I think it bears mentioning that the tribunal is really an end stage in an alternative dispute resolution process continuum, I think we would say, that's fundamentally different from, say, a trial in a court of the first instance, and the tribunal is effectively sitting as a final arbiter of claims that have already been subject to extensive review and analysis by both parties, so I can appreciate fully the challenges that lie there.

I don't have any questions at this time.

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Mr. Rickford.

We have time for a few more questions, because we did get started a little later.

I have three people on the list. If we can keep that to four minutes perhaps, are you okay with that, members? We'll proceed on that basis and try to take it up to the hour at least.

Let's go ahead with Mr. Bagnell.

I would ask that you keep your remarks to four minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I just have three questions. I'll give them all to you so you can manage your time in getting them all in with the three minutes you have left.

First, you said that an issue at the beginning, you thought, was that because you didn't know how big the claim was, how would you determine that if it's over $150,000...?

[A voice]

It's $150 million.

[Larry Bagnell, Liberal, Yukon, YT]

Yes, that's $150 million. My understanding is that the first nation, unless they had specified it was over $150 million, could bring it to you, so that's not a problem. It could be determined in your process.

Second, I was happy when I heard from the department that hundreds of cases had been solved. I didn't realize that you hadn't done anything yet. I thought it was your great work. So it's great that the department has solved all of these so far. Maybe the fact that you exist inspired them. That's great.

But of the hundreds that are left, if there's only a budget of $250 million a year, and you could go to $150 million per case...it sounds as if it would take 100 years to solve the hundreds of cases that are left. So are there enough resources?

Last, is there any compensation for paying the claimants? I think Jean was getting at this. How does a first nation fund the legal appeal or just the expenses for good negotiators? In other processes with first nations, they get funded by government. Even in the courts, if you win a case, you often get funded by the courts.

Those are my questions.

[Justice Harry Slade]

Mr. Chairman and Mr. Bagnell, there will be cases where it is plain that the compensation side would exceed $150 million. That would exclude the matter from the jurisdiction of the tribunal--at least its monetary jurisdiction. I think there will be claims where it simply is not know; it could be of that magnitude, but it's simply not known when the matter comes before us. Many claims have been settled, and that's good news.

As for the $250 million annually against $2.5 billion over time, I understand this to be money that has been put aside, so to speak, by government. Our act doesn't limit us to making awards in any particular year--let's say fiscal year--that are restrained by the amount of money government has made available in its budgetary process. There's nothing in the act that imposes that restriction on the tribunal.

On the funding for claimants, I'm aware there's funding in the specific claims branch process; I don't know the status of funding for matters coming before us. I anticipate, as you've mentioned, sometimes court-ordered funding. Who knows? The tribunal may receive an application for an Okanagan order, as they're called.... Of course, I can't speak to the merits of that, as it could be a matter I'll have to decide.

Thanks for the questions.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Bagnell.

Mr. Rickford, go ahead, please, for four minutes.