Evidence of meeting #76 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
11:50 a.m.
Liberal
11:50 a.m.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Thank you, Madam Chair.
Thank you to our guests for being here today.
My first round of questioning will be for Aluki Kotierk.
Did I say that right?
11:50 a.m.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Our study is based on the outcomes and impacts for indigenous communities that have signed comprehensive land claim agreements. From 30,000 feet, would you say that the signing of the comprehensive land claim, under which most of your people from NTI live, has been a good thing overall?
11:50 a.m.
President, Nunavut Tunngavik Inc.
The signing of the Nunavut agreement...? Has it been a good thing...?
11:50 a.m.
President, Nunavut Tunngavik Inc.
Yes. The reason I say yes is that it gave us a sense of hope. Now we have the structure in the agreement that outlines how that needs to be achieved. The problem we have is with the implementation of it. I think that if we were able to implement it, then we would achieve the dream, and it would be positive in that sense.
11:50 a.m.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
If you were to go back, given what we know now, you would say that you would sign the agreement again today; withal, if it had been implemented perfectly, you would still say yes.
11:50 a.m.
President, Nunavut Tunngavik Inc.
I like that question, because if I were part of the negotiation, I think I would sign off on it, but I would add more things that were related to language, culture, social issues, and education. For me, I think those are things that could have been highlighted more to strengthen it.
11:50 a.m.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Okay. Why I asked this is that there are still areas in this country that are looking for a comprehensive land agreement. We want to make sure that as we go into those kinds of negotiations we can say to those people, yes, these are things that are positive.
11:50 a.m.
President, Nunavut Tunngavik Inc.
Yes. I would give them that advice: try to incorporate some of these things that I think could have been strengthened in our agreement.
11:50 a.m.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
You talked a bit about how seven out of 10 children are going to bed hungry. We did a study on suicide, and I know that the NTI has done great work on trying to reduce the suicide rate as well. We also have run across population growth in Nunavut, for example, so housing is always a big issue.
If we were to graph some of these issues before the comprehensive land agreements were in place and then after they were in place, would there be any change in the line on that graph? For children going to bed hungry, has that improved? Under the comprehensive agreement, are there fewer children going to bed hungry or are there more? Has the suicide rate gone up or down under comprehensive land claims? That's I guess what we're getting at. Does the comprehensive land agreement make life better for the average person on the ground?
11:55 a.m.
President, Nunavut Tunngavik Inc.
I think you made reference to 30,000 feet. I'm going to go a bit higher and say that as Inuit enrolled under the Nunavut agreement we're also Canadians. When I look at the nation-building of this country and I know that the federal government has made investments into the railway from the east coast to the west coast, I feel and I truly believe that the Inuit Nunangat has been ignored. There's a void. Infrastructure investments are needed to go to the next coast. I think that as a government, as a nation, there needs to be robust infrastructure investments that are stable and address all the infrastructure needs.
You touched upon housing. I think it's not only housing. It's the diesel. It's the ports. It's the transportation. It's the broadband. You name it: in Inuit Nunangat those are the things that we don't have. We're not going to be able to achieve reasonable services comparable to those of other Canadians if those types of strategic investments are not made in our land.
I bring it back to that, I think, because if we're able to make those types of investments, over time things will become better. The overcrowding will be addressed in terms of housing, which will have an impact on the health, which will have an impact on education, and which will have an impact on suicide. It's all the social determinants of health that will be impacted by it.
11:55 a.m.
Liberal
The Chair Liberal MaryAnn Mihychuk
We're over the time, MP Viersen. I'm sorry. I'm consistently giving you a bit extra.
MP Anandasangaree.
11:55 a.m.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
With respect to dispute resolution, we've heard a bit about mediation, but this is the first time that we're really hearing about arbitration. Can you share with us your experience with respect to the arbitration process? Is something that you feel has served you well? Are there any limitations? What kinds of suggestions do you have in terms of increasing the use of arbitration as opposed to the regular court system?
11:55 a.m.
Senior Policy Advisor, Nunavut Tunngavik Inc.
When the agreement was signed, the federal government would not agree to a system of arbitration in which NTI could refer something to arbitration unless it agreed with the referral. Perhaps we could forward you more specific information relating to that process.
I think there were something like 16 or 17 attempts on the part of NTI to arbitrate matters, which were turned down. It was one of the issues when Tom Berger was brought in as a conciliator at a certain point and suggested that the government should allow at least one case to go to arbitration, but it didn't happen. In that sense, for us, the arbitration process was mythical.
The concern that the federal government seemed to express was that if we went to arbitration, the arbitration court might make a financial award, and that would be taking away from Parliament's powers to appropriate money, because that's a parliamentary privilege, yet when you go to court, you get a judgment and have to pay money. What's the difference?
The arbitration thing was a big thing behind our decision to go to court in 2006. We have secured revision of the agreement as part of the out-of-court settlement, so we now can go to arbitration as an alternative. Now, it's not free and easy. If you decide to go to arbitration, you can't go to court afterward. That's the end of it. However, it does give us an avenue that is available and that, in the short time since we got it, we have not used.
Noon
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
How about mediation? Have you had any mediations? If so, have they been successful or, relatively speaking, a good alternative to arbitration or the regular court system?
Noon
Senior Policy Advisor, Nunavut Tunngavik Inc.
Thomas Berger was brought in, I think in 2004 or 2005, as a conciliator because of the difficulty we were having, particularly with article 23. He did his report in 2006. That report was essentially ignored, which is part of the reason why we went to court.
Noon
Liberal
The Chair Liberal MaryAnn Mihychuk
I'm afraid that ends our session for this period.
I do want to give special thanks to Ms. Chapman for coming. We were enthralled with the modern treaty, and I feel as though we didn't really have an opportunity to delve into your point. Your point that looking at rights was eligible up to 1982, and then was not, is a significant point. I think all members will take that under consideration. Your brief was very clear. We'll have a paper copy. I want to thank you for coming out. Meegwetch.
To the rest of you, I wish you all the best. On behalf of all of us, thank you for participating and enlightening us on the advances of Nunavut, the agreement, and the challenges that we still face. Meegwetch.
We'll suspend for a few minutes and then reconvene with our Special Claims Tribunal.
12:10 p.m.
Liberal
The Chair Liberal MaryAnn Mihychuk
I'll call the meeting back to order.
I want to welcome Mr. Justice Harry Slade and Jennifer Hocking.
We have heard so much about your organization.
We have been across the country. The committee has been in British Columbia in the Vancouver area, and in Winnipeg, Belleville, and Quebec. We have a trip to Yellowknife coming up. We're looking at both specific and comprehensive claims.
We look forward to your presentation. You have 10 minutes, and then there will be a series of questions from MPs. I'll try to give you signals as to how much time you have so that everything goes relatively smoothly. Welcome to our committee. We'll turn the microphone over to you. You can start when you're ready.
12:10 p.m.
Justice Harry Slade Chairperson, Specific Claims Tribunal Canada
Thank you, Madam Chairperson and honourable members. There is a briefing paper, but I regret that it's not available, as we did not have time to provide it in both official languages. You'll be receiving that in the fullness of time.
I'd like to zero in on some of the major points that have to do with the parliamentary objectives in relation to the tribunal. It is an aspect of reconciliation. One of its objects is to create conditions in which negotiations may occur. There is an express recognition of the value of mediation, and the tribunal is empowered to make rules with respect to mediation.
Just to back up a bit, what are specific claims and how did they come to be part of the national discussion? In 1974, the Calder decision in the Supreme Court of Canada split evenly on the question of whether aboriginal title had been extinguished in British Columbia. The appeal was disposed of on a technicality, but governments started to take claims seriously. Two policies were formed: one to address specific claims and another was to address comprehensive claims.
Specific claims relate to treaties, the failure to observe the provisions of treaties, reserve creation, and the federal fiduciary obligations in relation to reserves. Comprehensive claims address unceded indigenous interests in land and resources.
I view the jurisdiction of the Specific Claims Tribunal as a presiding over the death of a thousand cuts, because we're dealing not with the big, broad, nationwide questions around indigenous title and what treaties mean, but rather the particular actions of succeeding governments in relation to indigenous interests at a local level that, when found in breach, have done so much damage to the indigenous peoples of our nation.
Comprehensive claims, of course, have more to do with the colonial failure to uniformly apply the common law recognition of indigenous interests in land and resources of the indigenous nations. Who became the responsible ministry of government to deliver these programs that were intended to address these claims? Well, it became INAC.
Cultural program delivery developed in INAC, because that's what they do. However, claims cannot be addressed in processes formed around a program mindset. These are questions of justice, not of programs. Claims engage substantive questions around indigenous interests and crown fiduciary obligations, not some sort of policy that feels good because it on the surface appears to be dealing with an interest or an issue that is affecting us nationwide. How can a policy come to grips with a substantive interest of a distinctive group of Canadians known as indigenous peoples?
But it went to INAC, and it stayed there. It appears, from our work, that in large measure it's still there. This has been a problem.
I say that these are more matters for justice. There's a governing precept in the crown-indigenous relationship called “the honour of the crown”. The honour of the crown relates to the fiduciary relationship between the crown and indigenous peoples. This is a place for the law. It is a place where the guiding principles in a relationship, when it comes to claims, are law, based for the most part on the fiduciary relationship.
Indeed, the Supreme Court of Canada, in Haida II and Tsilhqot'in, has recently said that where treaties do not exist, there are government obligations to pursue treaty-making. Can that be done in a policy-based process that we call the “comprehensive claims policy” where there is no oversight by a body empowered to make sure that everybody's at the table and to make sure that they're there to negotiate in good faith? I say no.
Going back to what's happening on specific claims, we just heard that there are thought to be 400 claims. We opened our doors in June 2011. We've had a total of 90 claims. Why is that? Many of the claims that have gone to hearing and resulted in decisions have gone to judicial review in the Federal Court of Appeal. There's one pending in the Supreme Court of Canada.
It's natural that people to sit back and wait to see how it works out, but early decisions of the tribunal in Kitselas that were upheld on judicial review have not resulted, it seems, in any settlements of like claims. The Auditor General has made that point.
Why is this? If you have a policy group dealing with claims at the bureaucratic level, the idea of a precedent seems to mean very little to them because it's a program to be administered.
In stakeholder consultations when I was first appointed chair—and I am the first chairperson—we engaged broadly with stakeholders, in part through the advisory committee that we're allowed to constitute under our act. We learned there that there was absolutely no interest in the federal crown in negotiating a claim that had come before the tribunal.
This puzzled us, because we're judges, and we're used to getting in there and helping litigants settle matters. Judges no longer just sit back, sphinx-like, and listen. They get involved, because if they didn't, the courts would get completely bogged down. Ninety per cent of civil filings are settled. Many, many of those are due to judicial encouragement of ADR. In some matters, ADR is required.
The answer was, “No negotiation: the minister has rejected the claim.”
With your leave, I'll take a couple of minutes longer, Madam Chairperson.
12:20 p.m.
Liberal
12:20 p.m.
Chairperson, Specific Claims Tribunal Canada
If you lose that, you're really lost, aren't you?
Claims come to us that have been rejected by the minister or that have been in negotiation for three years without an outcome. In answer to the question of whether there is an openness to negotiation, because the act seems to contemplate that—even mediation—they say, no, why would we negotiate? The minister has rejected the claim.
We've been going for seven years and encouraging negotiation without any take-up until very recently. This is a problem with the process below. We don't hear appeals from ministerial decisions; they're not reviews. But if the bureaucratic mindset is that the minister has rejected this so there's no basis for a negotiation in the context of proceedings before the tribunal, that's the end of it.
Now, there's no transparency in the specific claims process until you get to the tribunal. We don't even get the record that's generated there at the start of the proceedings before us. We don't know why it didn't get accepted or why the negotiation failed. If we did, we could craft a summary proceeding for early assessment—and perhaps even mini-trials, non-binding opinions—that might get the parties taking a closer look at whether or not they should be at the table. Also, we have rules providing for mediation. There has been zero take-up on that because there's been no negotiation.
What's happened recently is that there has been a change. Some matters are going into negotiation. We are being asked, however, to put claims in abeyance while they negotiate, and we hear that these negotiations are going to take five years. That's patently ridiculous. There's nothing like a trial date to motivate a negotiation, nothing like it. You put a claim into abeyance with no trial date and there's no pressure.
Five years? This is back to the future. It's those long, long lags of time. We have claims that have been in the process for 20 years that have resulted in the creation of the tribunal, and now we're being asked to allow it to go back to a process where it can languish in a bureaucrat's office—I don't use that term pejoratively, except occasionally.
12:20 p.m.
Voices
Oh, oh!