Evidence of meeting #4 for Indigenous and Northern Affairs in the 41st Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tribunal.
A recording is available from Parliament.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
To clarify with regard to the settlement agreement, first nations members must vote it in its entirety. Is that correct?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
Yes, they vote on the settlement agreement and the trust agreement as well.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Although this was brought up by Ms. Duncan, to further understand with regard to the tribunal, I want you to explain a bit about what happens if first nations reject a federal offer.
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
If the first nations reject the federal offer, it's their option to go to the tribunal to seek a decision on the validity and compensation of their claim, and they have access to the courts as well. It doesn't preclude them from taking either of those two avenues.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
With regard to either the tribunal or the court, is there one before the other?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
No, it's up to the first nation as to what they want. But if a decision is rendered at the tribunal, it's a final decision and it can't be pursued.
Senior Counsel, Specific Claims Section, Department of Justice
It's one or the other. If they decide to go with the tribunal, the decision is made by the tribunal and that's the end of the matter. They cannot proceed with the same matter before the courts.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
So to clarify, then, if they go to the tribunal—and this is what I'm trying to get at—could they deem that the court is a higher decision body and go to the court to have it overruled?
Senior Counsel, Specific Claims Section, Department of Justice
If they go to the tribunal, there is access to the courts through a judicial review. It's a judicial review to the Federal Court of Appeal. Then from there, if they wish, they could pursue it to the Supreme Court of Canada. There is access to the courts from the tribunal, but the mechanism is through judicial review.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Thank you very much.
I have nothing further, Mr. Chair.
Conservative
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
Ms. Dupont, during our last discussion, we briefly addressed the concept of a motion for advanced costs.
By advanced costs, I mean the amounts offered to communities related to expertise and to acquire the services of a legal representative.
Is it possible to examine this issue a little more closely?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
With regard to research and negotiation, the department provides funding to first nations to help them during the process. With regard to the negotiating table, naturally, funding is available to first nations. Every negotiating table develops a work plan that will direct the work that will be done at that table over the three years of negotiation. The first nation requests funding from the department.
When a specific claim is settled, the department not only pays out the claim, but it also reimburses the costs incurred by the first nation during the negotiation process.
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
Will amounts be allocated to the first nations with regard to the tribunal that will be created or that is already operational?
Also, what qualities must the legal representative possess? Does he or she have to be a member of the bar of a specific province? Does he or she have to be a member of a specific professional body?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
Yes, the first nation must be represented by a member of the bar. Funding is available through the department for first nations that wish to file their claim with the tribunal.
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
Is the assessment of funding available based on the percentage?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
No. It is based on demand. The department applies certain criteria to requests for funding. Some costs are covered. It is a process similar to the one used when first nations submit a request for funding during the negotiation process. Some criteria must be met. The same approach is used here.
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
Was this specified in the letter that you sent to communities? Was it indicated at that time that the services of a lawyer could be required? If not, are these merely internal rules that you use in your offices?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
These are tribunal rules on how first nations must be represented. The tribunal issued rules of conduct that are posted on its Internet site. First nations can go to the site to see how the process works, find out how to file their claims and determine who is entitled to file a claim.
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
Subsection 25(1) states: “A First Nation or person to whom notice under subsection 22(1) is provided...”
When it says “person”, does that mean that every member of a specific community will be informed when this type of hearing is held? It is important to note that, as individuals, community members could have specific interests.
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
I do not know to which document you are referring. Are you referring to the act?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
The manner in which scheduled cases or hearings are announced depends on the tribunal rules. It is up to the tribunal, which establishes its procedure according to the cases it is dealing with, to determine who must be informed. The tribunal rules would have to be verified to determine how it works.
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
So it is on a case-by-case basis. It is possible that each member of the community could be informed.
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
I admit that I do not know the tribunal's rules off by heart. I do not know whether the rules address this particular issue but, with regard to the tribunal's procedures, I believe that it has prescribed rules of conduct. However, the tribunal can decide to modify those rules for certain reasons. The question would have to be directed to the tribunal.
