Evidence of meeting #17 for Indigenous and Northern Affairs in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was band.
A recording is available from Parliament.
Conservative
Liberal
Carolyn Bennett Liberal St. Paul's, ON
We in the Liberal Party are very sensitive to the fact that this is an agreement that was made between the first nation and Canada in the agreements of 2008 and 2011. However, I think we felt it was important to bring this to committee in that it's a rather unusual precedent that in a process that badly underestimated the numbers and where clause 4 says that even though the process was severely flawed, people can't receive any compensation or damages or indemnity for what was a flawed process. This seems to be an unusual precedent for a government to indemnify itself against mistakes that clearly were made.
We want to know why you don't think it should be the courts that decide and why you are asking Parliament to prejudge this situation.
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
Of course we received legal advice. We know that right now the Governor in Council does not have the express authority to amend the schedule and remove names from it, so this is about protecting the taxpayers of the country. If a person within the spirit of the agreement—and everyone was well meaning when those eligibility criteria were adopted—the first nation doesn't want to be swamped by people who are not and don't have that connection with this first nation. Since we know that we don't have the express authority to change the schedule, we are seeking that authority.
On the issue of the inability of people to claim damages from anybody with regard to a situation where, for example, they would not be on the founding members list, it simply respects the principle that if you are not entitled to these benefits, you should not get them. We all know how the law works and the principles of representation and negligence, so the taxpayer should not bear the cost of someone getting benefits that fundamentally and fairly, according to the intent of the parties, they ought not to have got.
We have been clear that if someone is removed from the list, we will not go after these people to get back the benefits they've since been getting.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
If somebody is removed from the list, they have the ability for an administrative appeal. Is that correct?
Liberal
Carolyn Bennett Liberal St. Paul's, ON
If the administrative appeal finds they were wrongly removed from the list, the Government of Canada doesn't owe these people anything in terms of damages or what they've just been put through.
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
No, because they wouldn't keep their status.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
But they've still had to go through a lengthy process and appeal and there is no compensation for having put them through that. In terms of rule of law, it seems to be an unusual precedent that you are preventing people from having what they normally would have in any other case.
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
I've been a lawyer all of my life and I've never seen clients come in where the government was paying their fees. All my clients were paying their legal costs to assert their rights. These people, if they decide to enter legal cause to pursue the matter, are just like all other Canadians, and I don't think we have an obligation to pay those costs for these people who want to assert their rights. We don't do it for all other Canadians. It would be great if we had budgets to do that, but we don't and I wouldn't advocate for this.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
We're not just talking about their legal fees. We're talking about if they feel they've been wrongly removed from the list that the government now is protected from any damages or payment for the fact that the person had to go through this process.
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
You are not compensated in court for going through the process. You are going to recover damages for your losses, which the court determines.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
It's a matter of justice if you were wrongly removed from the list.
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
You cannot be wrongly removed from the list, because that will be determined through the process. If the appeal master decides, or the enrolment committee decides, that a person does not meet the criteria, then that person is not eligible. That person loses nothing because they are not eligible.
Conservative
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
—enrolment decision to the master and then they can resort to the court on the agreement, but they will not get damages unless a court decides that.... I don't know what the court can.... This is a private agreement, contracted between two parties and the terms are clear as to who is eligible and there is a process agreed to, to determine that eligibility. Once that process is done, the matter is over.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
You mentioned that you've been a lawyer all your life. Do you know of any other situation where the government has done this to indemnify themselves against damages?
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
Absolutely. If you look, for example, at the Indian Act, at what we did in 1985.... I was a young member of Parliament. We did Bill C-31. That was when we wanted to remove the discrimination against women who were losing their status because they were marrying white people. We did that, the Conservative government in 1984. Clause 22 states: For greater certainty, no claim lies against Her Majesty in right of Canada, the Minister, any band, council of a band or member of a band or any other person or body in relation to the omission or deletion of the name of a person from the Indian Register in the circumstances set out in paragraph 6 (1)(c), (d) or (e) of the Indian Act.
The Gender Equity in Indian Registration Act, which the previous Parliament passed in 2010, Bill C-3, contains in section 9:For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent....
This is not a novel concept to protect taxpayers.
Liberal
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
It happens. I'm giving you two examples because they relate exactly to what we're talking about.
Conservative
The Chair Conservative Chris Warkentin
Thank you very much.
We'll turn now to Mr. Boughen for the next round of questions.
Conservative
Ray Boughen Conservative Palliser, SK
Thank you, Chair.
Let me welcome Minister Valcourt back to our abode here and his officials with him. We look forward to sharing part of this afternoon.
I have a couple of questions, Minister. First of all, our government stands up for Canadian taxpayers. This means we respect the public purse that has been entrusted to us. To that end, when 101,000 applicants were received for membership in the Qalipu Mi’kmaq First Nation, both our government and the FNI recognized that granting all applicants membership was imprudent from both cultural recognition and fiscal standpoints.
Can you please explain how Bill C-25 ensures that those applicants entitled to membership will receive the rights and benefits due to them, while respecting taxpayers' trust in our government? I know you talked about some of this earlier today. Maybe you could just flesh that out a little bit for us.
Conservative
Bernard Valcourt Conservative Madawaska—Restigouche, NB
It is important to stress that each application, each of the 94,000 we're left with for membership, is being assessed on its own merits. It is important for members to realize there is no quota or maximum number of members who will be registered at the end of the enrolment process.
In order to ensure that all applicants are treated fairly and equitably, all applications, except those previously rejected, will be reviewed. To complete the enrolment process and finalize the membership list of the first nation, as I've said, it is necessary to amend the schedule to the recognition order that lists the names and dates of birth of the founding members of the first nation. The amending of the schedule to the recognition order is required, of course, to implement the agreements.
This is what will result in the taxpayers being respected. More importantly, or as importantly, I should say, the integrity of the first nation will be maintained so that only those who have this strong cultural connection to the band become its members. I think that's how we will ensure that, yes, taxpayers will be respected, but the spirit, the culture and the heritage of that first nation also will thus be protected.
Conservative
Ray Boughen Conservative Palliser, SK
When we look at Bill C-25, we see a bill that's technical in nature and seeks to ensure integrity in the enrolment process, which you just talked a little bit about there, of the Qalipu Mi’kmaq First Nation. I understand there's an independent and fair process that all applicants will go through for the determination of eligibility for membership in the first nation.
Can you explain how Bill C-25 will be implemented? Why would the government like to move swiftly on this file for the benefit of the first nation?