Indigenous and Northern Affairs Committee on May 3rd, 2016

[Madam Justice Johanne Mainville, Tribunal Member, Specific Claims Tribunal Canada]

I will speak in French.

Good afternoon, everyone, and thank you for the invitation.

I left the courtroom I was presiding over today, and I have to go back there tomorrow because I continue to preside over it. It was urgent and important for me to come speak to you about this issue, which is not unique to Quebec.

I have been sitting on the Specific Claims Tribunal Canada with Judge Slade since the very beginning. We worked very hard to establish the tribunal. My term will expire at the end of November. I will no longer be able to sit on the tribunal, as the law provides that our term can only be renewed once. Unless the law is amended, I will not be able to continue being a member of the tribunal.

There is urgent need for action because, if no new members are appointed, Quebec will no longer have a representative on the tribunal as of the end of November. However, we have cases in French, and I am currently the only judge who speaks French and can handle those cases.

Quebec judges also handle cases from the west, but we need a judge for cases in French, including those from Quebec.

Is my time up?

[The Chair, Liberal, Andy Fillmore]

Yes.

I'm very sorry, but we'll hear more through the questioning, I assure you. Thank you very much for your remarks.

We're going to move right into rounds of seven-minute questions from the committee members, and as I did with the opening statements, I'll raise a single finger when there's a minute left and a hand when there's no time left.

Again, in the interest of fairness, the first question is coming from Michael McLeod, please.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thank you, Mr. Chair, and thank you to the panel for your presentation. I appreciate the discussion that you bring forward.

I'm interested in getting a little more information on some of the challenges you're facing. You have flagged a few of them. I was going to say that I was surprised; but I'm not surprised, I guess, at the vacancies in the council positions. We're seeing this right across the country. We're hearing it from Alberta on traditional appointments. I'm from the Northwest Territories, and most of our regulatory boards have not seen appointments in...some of them as long as two years. We have a number of boards that have lost quorum and can't function, and it's a real challenge to move forward. We're really trying to get those vacancies filled in a short time period and in a hurry.

Your tribunal's 2015 annual report outlines a total caseload in a number of areas, in jurisdictions across the board, and it also indicates that most if not all claims allege a breach of the crown's fiduciary obligations.

I want you to talk a little about the distribution of your caseload and any considerations that might be taken into account to ensure that the hearings are accessible to the first nation peoples from Canada.

[Justice Harry Slade]

Ms. Lombard is better able to speak to the distribution of the caseload than I am, but generally 50% of the claims come from British Columbia and Alberta. Of that 50%, 75% come from British Columbia. That's due to the history around reserve creation, which is outside of treaty in B.C. Those are fiduciary duty claims.

What about the rest of them?

[Alisa Lombard, Legal Counsel, Administrative Tribunals Support Service of Canada, Specific Claims Tribunal Canada]

I'd say approximately 11 originate from Quebec, and most if not all are in the French language. Two-thirds originate from Ontario westward, with varying types of claims in those provinces ranging from alleged unlawful surrenders, unfulfilled treaty promises, agricultural implement claims, to legal disposition claims. Most of these, if not all, allege a breach of fiduciary duty conceptualized one way or another.

[Michael McLeod, Liberal, Northwest Territories, NT]

In your opinion, what are the main challenges faced by the first nations communities that may lead them to allege a breach of the crown's fiduciary obligation?

[Justice Harry Slade]

With respect to the tribunal I think the challenge that first nations face, first and foremost, is a lack of adequate resources to pursue claims before the tribunal. It's turned out to be more costly than I had hoped. That's not too surprising in the early days as the proceedings are testing many issues that have previously been untried.

Fiduciary law is a developing area of the law in Canada, particularly as it relates to indigenous groups and crown responsibilities derived from the precept of the honour of the crown. We're getting more efficient as we move along, but the length from filing to hearing is far too long. That is in large measure due to resource challenges that the first nations claimants have. In part it's due to our process, in that these claimants, though they have been through the process under the specific claims branch of the ministry, have not had any disclosure of relevant documents in relation to their claims. So the starting point for a quasi-judicial process—that's at the extreme end of judicial for a tribunal—is document disclosure. They have their claims rejected by the minister on the advice of the specific claims branch and the Department of Justice. They get a summary of why, but they don't get disclosure of the material that minister relied upon in arriving at his or her decision not to accept the claim.

Procedural fairness demands that the claimant, that both parties, have access to all relevant documents. When they come into our process they start by conducting historical research. Frankly, the specific claims branch and its lawyers take exception to the disclosure to the claimant of anything that was prepared in connection with the claim within their offices. It's a nonsense proposition, in my view, but it's the position they take, and so everybody has to start from scratch.

We're losing elders by the way. We've had to adjourn matters or not been able to set matters down for hearing in a prompt and timely way, with the result there's a loss of elders' evidence in the nature of oral history.

[The Chair, Liberal, Andy Fillmore]

You're out of time there, Michael, I'm afraid.

The next question comes from Cathy McLeod, please.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you for an excellent overview. I do actually have to make a quick little comment.

I know there are challenges with the GIC appointment process, but it's not helpful when the new government sends letters to many recent appointments and asks them to step down from their positions. I do think that we also need to acknowledge that sometimes there are processes that aren't helpful as we try to ensure good manpower. I just couldn't let that ride, sorry.

What would you deem a full complement? Is it mandated what your full complement is?

[Justice Harry Slade]

The act provides for the appointment of up to six full-time equivalents to be drawn from a roster of up to 18 judges. The idea is that there be a fairly large pool of judges who can be called upon to serve full- or part-time on the tribunal.

There was no consultation with the judiciary before the act came into force. The late Don Brenner, my chief justice, called me in my chambers and said, “Hey, Harry, what is a specific claim?” That began a judicial education in my court about specific claims and existing processes. In any case, he first learned of the act and the companion amendment, which was to give the B.C. court three more judges, Ontario two, and Quebec one, to offset judicial time dedicated to the tribunal, when he received a copy of the bill just before third reading.

So we don't have a roster, really.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

I'm from British Columbia and I'm very familiar with the challenges there and the unresolved, long-standing land claim issue. I'm more familiar, of course, with comprehensive process because I've been involved with it, but I'm relatively new to this committee.

I see the Williams Lake case, and then I know that in my riding there is Douglas Lake. One is heading down the judicial path, and they might be looking at how they can resolve that, and I see that the Williams Lake case was something that headed down...and you issued a decision.

Can you flesh out for me a bit about the Williams decision and that case going down the path of your process? It's the Williams decision that you have on your website.

[Justice Harry Slade]

That is a decision that addressed several of the more complex issues around crown fiduciary duty, particularly with British Columbia.

I expect they were driven to take the matter to the tribunal because of an expired limitation period. We're dealing with historical claims, and for virtually all of them, if they were in the courts, they'd be statute barred, so they came to us.

We heard oral history, we had a large number of historical documents, we had full and capable submissions from counsel for the claimant and the crown. I, as the presiding member, released a decision that's overly long, but addressed all those complex issues. The matter went to judicial review in the Federal Court of Appeal. The Federal Court, with respect, thought they were dealing with an appeal, and not judicial review, and reversed my decision.

I can tell you that I don't think any more of their decision than they do of mine, and there is an application for leave to the Supreme Court of Canada.

It's probably important that at some point one of these decisions gets to the Supreme Court of Canada, but looking at it from the claimant's perspective, of course, where do they get the money to engage in a judicial review in the Federal Court of Appeal, much less the Supreme Court of Canada? They've filed their leave application and, of course, we're watching that. That's Williams Lake.

Of course, the indigenous peoples there did not get a reserve until 30 years, or whatever, after others were allotted. They were virtually homeless, having been dispossessed of their traditional village by settlers who were pre-empting the land they routinely used as village sites and resource-gathering places.

That's the kind of claim we get.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

I only have a minute left, so there's probably not a lot of time.

You say you have received 76 claims. They're in process. Have a number not been submitted by virtue of your not having the capacity to deal with them, or is that the workload out there right now?

[Justice Harry Slade]

Claims entering our process are delayed due to the inability of the current complement to manage them. We're very heavy on case management, because we want everybody to be ready by the time we get to a hearing date. Some claims are simply unassigned because there's absolutely no point in assigning a claim to a judge who's already overloaded, so those languish. Claims that are active in the process get delayed due to our lack of resources.

[The Chair, Liberal, Andy Fillmore]

The next question comes from Charlie Angus, please.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I want to ask a couple of framing questions, and then we can get into specifics.

We have the claims branch and we have the tribunal. Does the claims branch decide what cases actually get to the tribunal, or are you able to make those decisions?

[Justice Harry Slade]

The claimants make that decision, honourable member. First, these claims have to go to the Minister of Indigenous and Northern Affairs for a decision whether or not to accept the claim for negotiation. The claims are reviewed by the specific claims branch, a department of that ministry. They do their own research and then take advice from the Department of Justice. A recommendation is made to the minister. If the minister rejects the claim—they prefer the language “does not accept”—then it qualifies to come to the tribunal. If the claim is accepted and there's no resolution in two years, the claimant can bring the matter to the tribunal.

[Charlie Angus, NDP, Timmins—James Bay, ON]

That's interesting.

In another life, I worked for a community in Quebec on their specific claims history. People had been on those cases long before I came along, and they're still on them. There was a whole series of dubious and bogus land surrenders, expropriations, and deals with trust funds. This is very technical stuff. Back then, you had to trust the Indian agent to have your interests heard. In this community, there was only one Indian agent ever fired, and he had advised the community not to support a surrender of land. Then he was found by the department to be unacceptable in his post, and was fired.

Yet today, not to cast aspersions, the department controls the purse strings. They have a lot of power in a sense, because they're both the defendant and the adjudicator of the process, an overseer. We've seen major cuts to the research teams which enabled us to bring forward cases. Are you concerned about our ability to maintain the merits of historic, well-researched, and credible cases, if we don't have the funds and the research support to follow through?

[Justice Harry Slade]

Mr. Angus, I am concerned. The average life of claims that come to us based on a rejection—that is, the life of that claim with the minister—is probably around 12 years. I've seen them go as long as 20. Rarely do we see one that has been in the process for less than five years. Naturally, the composition of the communities changes. The composition of the council of the first nation changes. The delay works against justice.

I think we would have a lot more claims if.... In fact, by our calculation, there are at least 450 claims that would qualify to be brought before the tribunal, but the combination of a lack of funding, long delays with the specific claims branch, a loss of momentum, and the well-known problems facing the tribunal, are likely preventing claims from being brought forward.

[Charlie Angus, NDP, Timmins—James Bay, ON]

For the people bringing forth claims, on the one hand, there's certainly been a lot of concern about the lack of research capacity, and about it being dragged out. As you pointed out, the research teams leave, and it's hard to maintain a case over 12 or 20 years.

However, in your case, the judges were not able to get out to do the work, as you have raised. Do you have within your tribunal the resources necessary, if you had the complement, to be able to fully respond to what potentially could come your way?

[Justice Harry Slade]

That's a good question.

We're operating a very bare-bones shop, and we've avoided adding staff when they would stay idle because of the lack of a full judicial complement. However, as the judicial complement grows, we will need more staff. Also, I am confident that our executive director, Stuart Campbell, who is here, is taking the steps that are required to serve a more fulsome complement of members. Of course that all takes time.

We're now under the Administrative Tribunals Support Service of Canada, which provides services to 11 tribunals. By the way, we've lost our stand-alone service provider and now are under—

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm sorry to interrupt you there, but with regard to your being under the Administrative Tribunals Support Service of Canada, the Canadian Bar Association has raised concerns that these changes will have impacted judicial independence, in particular by having a chief administrator reporting directly to the Minister of Justice. Do you share any of those concerns?

[Justice Harry Slade]

Those concerns originated with me.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I wondered where I got all that smart information. Maybe you can elaborate.

[The Chair, Liberal, Andy Fillmore]

You have one minute remaining.