Indigenous and Northern Affairs Committee on May 3rd, 2016

[Justice Harry Slade]

First, our three legal councils, including Ms. Lombard, are all technically employees of the ATSSC, which falls under the Department of Justice. It puts legal council into a very awkward position. Fortunately, our legal council know that their responsibilities are to the tribunal and not to the ATSSC, and they stand firm in their resolve not to be conflicted.

The difficulty, though, is that if we face a challenge based on institutional bias, we may very well be found by a court to not offer up the appearance of independence that is required of a court-like adjudicative tribunal. That's a risk.

[The Chair, Liberal, Andy Fillmore]

The next question is from Rémi Massé, please.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

I want to begin by thanking you for participating in the committee's activities.

[Justice Harry Slade]

I require translation.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

I want to begin by thanking you for participating in the committee's activities. It is much appreciated.

I must start by saying that I am not a legal professional. You raised a series of issues. I'm trying to understand what is at the source of those issues and, most importantly, how we could resolve them in order to support you in your process.

Please shed some light on the issues, as well as on potential solutions. You have raised a few of the issues, but I would like you to tell us more.

[Justice Harry Slade]

We provided a very thorough submission to Minister Valcourt's special representative in connection with a five-year review that's called for by section 40 of the Specific Claims Tribunal Act.

The special representative, Mr. Pelletier, was good enough to come back to the tribunal after interviewing stakeholders, and he told us of their concerns and their ideas as to how our process may be improved. We were invited to make submissions on them. I commend those submissions and Mr. Pelletier's report, which I have never seen, to the members of this body.

We talk about changes throughout the specific claims process that would establish a bigger role for the tribunal in the preliminary vetting of claims, but all the while leaving it to the minister's discretion whether or not to accept claims.

We discussed a summary procedure for bringing claims forward that would depend on full disclosure by the specific claims branch. We talked about the appointment of prothonotaries as they have in the Federal Court, who could make procedural decisions, such that the judicial members wouldn't have to carry the whole load.

There are many other ideas in there from both the tribunal's submission and the submission of the Assembly of First Nations to the special representative.

The five-year review is supposed to be concluded by October this year and, of course, it has fallen to the current government to see that through. The members of the tribunal stand ready to assist the minister in any way we can to flesh out ideas on how to make our process more efficient, less costly, and more user friendly.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

In your speaking notes and your presentation, you said that you were “not pleased with the pace of progress in the performance of the tribunal's mandate.” You also raised the fact that you are “hampered by a chronic shortage of judicial members.”

Could you explain to us ordinary people how the process for appointing judges works? Of course, I am very happy that the minister responded to your request and that three judges should soon be appointed. I am very happy about that, but please tell me a bit about the appointment process and about what may be behind the delay and the slowness of that process.

[Justice Harry Slade]

Of course, the process starts with the appointment of judges to the superior courts, as members of the tribunal are drawn from the courts. Thus far it has been limited to three courts: British Columbia, Ontario, and Quebec.

To receive an appointment to the tribunal we need volunteers. Of course, judges like to know what they're getting themselves into. I'm not sure I would have decided to volunteer if I had known what I was getting myself into, but then again my spouse, who is Tsimshian, said I had to do it, so I guess I had to do it. At the time I was one of the few judges in the country with a long background in these matters.

In any case, a judge will volunteer and then it's up to his or her chief justice to nominate, and that, as I've mentioned, is a decision that will take account of the needs of the court.

[The Chair, Liberal, Andy Fillmore]

You have one minute.

[Justice Harry Slade]

If there's a nomination—and we don't have many volunteers, so we don't have many nominations, just three—then it's for the Minister of Justice and the Minister of Indigenous Affairs to make a recommendation to cabinet. If cabinet sees fit to approve a nominee as a member of the tribunal, then it will be made. It's a Governor in Council appointment, but thus far over a period longer than two years, we've had nominations from chief justices but no action to get those to cabinet. Without that it simply doesn't happen.

[The Chair, Liberal, Andy Fillmore]

We're moving now to a round of five-minute questions. These will move a little more quickly.

The first question is from David Yurdiga.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Obviously we have a problem, and the lack of resources is probably the reason we have a backlog in the system.

We understand that the tribunal currently has about 50 claims active. How many claims are scheduled for hearing this year?

[Alisa Lombard]

I wouldn't want to speculate. Are we talking about the fiscal year or the calendar year?

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

I meant the calendar year.

[Alisa Lombard]

Since January, I would say no fewer than 10, and some of these hearings can span a week, two weeks, three weeks. They include oral history, evidence hearings, expert witness hearings, as well as hearings on the merits of validity and compensation.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

In the present circumstances, with the lack of funding, how much time would be required to clear the current inventory of claims before the tribunal? A guesstimate would be fine.

[Justice Harry Slade]

If the current claims stay with us and we have no more judges, I don't know—five years? Of course, we're getting new claims and we're moving claims that have been found to be valid into the compensation phase. Even with the three additional part-time members, it's going to take a long time to clear the existing backlog. We're going to need more judges.

The other difficulty is that it's impossible to have a succession plan, and we need another full-time member—at least one—so that a successor to my position as chairperson can develop. I only know of one judge who is prepared to commit for five years, Justice Todd Ducharme of the Ontario Superior Court, who I think would be an excellent successor. He, by the way, is Métis. I think the tribunal would be well served by having diversity among its members. I'd like nothing more than to hand it off to Justice Ducharme, but he has to be appointed. To be appointed, his chief justice has to release him, and thus far Chief Justice Heather Forster Smith of the Ontario Superior Court of Justice is not prepared to do that. Of course, it's up to the chief justice, who has to look after the demands of their court.

I would very much like to see Justice Ducharme on the tribunal. He is younger, very learned, very pragmatic, and I think it would serve the interests of diversity if he were to join us. He's the only judge I know who is prepared to come on board full-time.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

It becomes a problem, when succession is not easy, to hand it off to the next chair.

Is there a time frame you'd like to work within before the torch is handed over?

[Justice Harry Slade]

I'm early in my second and final term. Under the act, you can only have two, and besides, by the time this term is over, so am I, as a judge, at least. I would like to see someone take over in the middle of my term, and then I could continue to serve for the remainder of the five years and perhaps take a little more time out west, where my home is, and hear claims primarily out there. That would be a really good outcome for me personally and, I think, for the tribunal.

[The Chair, Liberal, Andy Fillmore]

We're out of time.

The next question is from Gary Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

I want to probe a bit more. You mentioned the importance of diversity in the judiciary. It's an area I know is important to our government. We want to make sure that the diversity of Canada is represented in the judiciary overall. It's an area that I worked in extensively.

With particular emphasis on our indigenous population, do you currently have any members serving in the circuit that are of indigenous background? You alluded to it, but could you speak a bit more on the importance of it and how we can ensure there's representation on a very important issue that will confront the community more than anyone else?

[Justice Harry Slade]

It would have to start, honourable member, with more diversity in the appointments to the courts, because that's where we get our members. We do not have a member of indigenous ancestry—rather, there are very few superior court judges who are of indigenous descent.

This is not a place for inexperienced judges. You want tribunal members who have some experience as a judge, because you quickly learn as a judge how not to get run around by the antics of the parties and counsels, and the sort of thing I used to engage in. You want somebody who can bring the matter along and be somewhat forceful in doing so. It's quite a challenge to get a person of indigenous descent onto the tribunal. First, you need to be a judge, then you need to volunteer, then you need to be nominated, and then you need to be appointed.

I think it would give the claimant community more confidence that they're going to be heard if there were diversity on the tribunal. I shouldn't pat myself on the back too much, but we've gained a good reputation for being open, accessible, and utterly transparent. That's largely a consequence of our taking the hearings to the communities.

[Madam Justice Johanne Mainville]

I completely agree with Judge Slade. We have also tried to figure out who could become a member of the tribunal. Unfortunately, the issue is that there are not many aboriginal judges in the Superior Court. It is already very difficult, in the first place, to find judges willing to sit on the tribunal.

Both Judge Slade and I have a practice, as lawyers, in aboriginal law. We are very familiar with that field. That's probably also the case for some judges from British Columbia, but it is not the case for most judges. They are not too keen to tackle such an issue.

If more aboriginal judges were appointed to superior courts, we would encourage the process.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

In terms of the procedural delays and delays in disclosure, do you have the power to award costs? If not, is that something that would be helpful in moving this along, especially with respect to dealing with the government?

[Justice Harry Slade]

We do have the power to award costs. There have been no awards of costs thus far. Generally, counsel, within the limits of their resources, have advanced matters as expeditiously as they're able.