Indigenous and Northern Affairs Committee on Oct. 19th, 2017

[Justice Harry Slade]

Where is the good news here?

Well, the good news is that it seems the Department of Justice—the Minister of Justice—is now coming into the picture with respect to specific claims. You're probably aware of the September 6, 2017, joint announcement about a policy review.

I'm pretty sure that the Minister of Justice had no idea that these people from INAC were saying, “You can't push her claim in the tribunal if you want to negotiate with us.” By the way, the funding disappears for litigation before the tribunal if they go into negotiations. Where, I ask, is the good faith in that?

I'm just going to say a couple of things about comprehensive claims.

You hear much about a commitment to the UN Declaration on the Rights of Indigenous Peoples. Well, there are two things that really would have to be addressed to go anywhere with the resolution of territorial interests there.

Identify the indigenous groups. There are not 634 indigenous groups. Those are bands. There are perhaps 50 to 60 indigenous nations defined by culture and language in this nation, 23 of which are probably in British Columbia.

So you go to court: how long would it take before you get any answers as to whose territory is whose in a zero-sum game in court? But you can't do it, in my respectful opinion, based on government policies that empower only the policy-maker. They've done better in Australia and New Zealand. They have tribunals; they can't make decisions, but they can certainly move everybody in that direction.

We don't have that, but clearly the federal government has the power to create it, and UNDRIP asks for it. Article 27 calls for a process to be developed in consultation with indigenous peoples to bring these matters forward, to resolve the questions, and to produce lasting outcomes. I am at a complete loss to understand why we do not have that in Canada.

Thank you for giving me the extra time. I welcome your questions.

[The Chair, Liberal, MaryAnn Mihychuk]

I'm sure that our members have many.

We're going to start with MP Anandasangaree.

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

Mr. Justice, thank you, and welcome to you and Madam Counsel as well.

I hope the chair gives us the same indulgence on time that she gave you.

[Voices]

Oh, oh!

[The Chair, Liberal, MaryAnn Mihychuk]

No.

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

That was almost double what the usual time allotment is, but it's very important to hear from you.

I want to focus on specific claims as opposed to comprehensive claims. I know you have quite a bit to say on comprehensive claims, but with respect to specific claims, we've heard from a number of different witnesses who were very dissatisfied with the process, the timeline, and the lack of actual negotiations with respect to the process, as well as the cost.

What specific recommendations do you have for us that will effectively streamline the mandate of the Specific Claims Tribunal and ensure a speedy resolution? Would you recommend an almost mandatory type of mediation or other extrajudicial or “extra-formal” processes that would allow us to have earlier conclusions on these claims?

[Justice Harry Slade]

You can't have a negotiation without both parties buying in. If the starting point is “no negotiation because the minister has rejected the claim and that's why we're here”, there's nothing we can really do to speed up the process before us.

I shouldn't say there's nothing. If we were to provide early assessments—mini-trials with non-binding opinions—the process could be accelerated. However, there's no point in doing it if you know that the mindset is “we're not going to negotiate”. At the end of a mini-trial, if a non-binding opinion says “we think there's something here that should be negotiated”, what should happen next is that it should go into mediation. But that takes acceptance of the non-binding opinion by the respondent. Likewise, if the non-binding opinion says there's really nothing there, then the claimants can still decide to go the whole distance in our process, but they may want to think about whether they want to commit those resources to those as well.

I think we can do it with the rules, but I'm not sure. What I'd like to see is crown support for our going down that path so we know we're not wasting our time.

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

If it's within your rules, the natural question is, have you attempted it? If you have the mandate to do it, why haven't you done it?

[Justice Harry Slade]

Well, we've raised this with the advisory committee. We did that a couple of years back, but for whatever reason, the message seemed to be from the AFN that they were nervous that this sort of process would somehow work in favour of the crown, so we backed off from that.

We've recently met with the advisory committee and, out of that, we are developing a rule for consideration that would provide for early assessment, mini-trials, and non-binding opinions, so it's in the works.

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

A number of people who appeared before us have raised the issue of impartiality. That's not in any way a reflection on you, but on the process. They feel that your office is appointed by the government, the funding for your office goes through the government, and funding for individual claims to groups also goes through the government, so there is some apprehension as to whether they're submitting a claim to a process that is deemed to be impartial.

How do we strengthen that? How do we ensure that confidence is there for people to come forward?

[Justice Harry Slade]

First, you have judges. Members of the tribunal have to be superior court judges. That deals with the first concern. If people don't accept that because members are judges they're impartial, there's nothing that can be done about that.

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

The other element is obviously funding. When you have a big funding mechanism, this is often seen as aiding the government, or as restricting the ability of a group to go through a claim, as opposed to facilitating it.

[Justice Harry Slade]

In terms of support of the tribunal, we have the funding, and I don't have any reason to think we won't continue to have it.

I don't like having been thrust under the Administrative Tribunals Support Service of Canada, because it could raise a question of institutional bias, but so far, so good. They're giving us everything we need.

The key here is adequate funding to the claimant community and adequate funding to the offices of the crown that have to deal with these claims. We often hear from crown counsel their frustration that they can't hire the historian they need, or they can't hire the expert witness they need. Even if they had the money to hire them, they'd have to go through a three-month procurement process, which seems to me quite ludicrous, but then I come from the private sector. In my law firm, if we wanted something, we went out and bought it.

[The Chair, Liberal, MaryAnn Mihychuk]

It doesn't seem to be the situation with the federal government.

Now we'll go over to MP Cathy McLeod.

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

Thank you. I certainly appreciate your wise words and the 100,000-foot level.

If I recall, when you were here last, you said that you wanted to retire but there were no replacements around. There was a real challenge in terms of getting judges for the panel. Can you tell us where that's at now?

[Justice Harry Slade]

Well, it's pretty much exactly where it was.

I don't want to retire, but I have three years left in my term and I'm going to have to retire. My concern is that it takes a while to really develop a successor.

Here, we come back to a problem around the members being judges; members should be judges. However, if governments aren't going to keep judicial complements at an adequate level to enable the courts to do their work, they're not going to get volunteers from the courts. Even if they do, the chief justice's first obligation is to ensure that the court can do the work that's put before it. That has been a chronic problem: not having enough judges on the courts.

The questions of independence that trouble judges greatly, and not all are satisfied that the independence of the tribunal is as well protected as is their independence as members of the court. I think we can deal with that. I'm aware now that there is a recommendation going to the minister for an appointment of a person for a long enough period, full time, so for the succession issue, I think we might be approaching a solution to that.

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

Right now, is it fair to say that it's the same complement of judges that it was when we heard from you about a year ago?

[Justice Harry Slade]

Yes.

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

You're hopeful, but the backlog is creating issues.

[Justice Harry Slade]

We're going to lose a couple of members due to people hitting the magic age when judges get the boot.

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

Maybe it was the others who I remembered who were retiring, not you.

[Justice Harry Slade]

I think we're going to get at least two new members in short order, one of whom would be appointed on terms that could address the succession issue. We have an existing member from the Quebec court who's younger, and I'm hoping that Justice Mayer will re-enlist. I think the succession question is going to be capable of being addressed.

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

We heard from two groups earlier. I believe you heard part of their testimony.

The witness from Lesser Slave Lake talked about how the scope should be wider in order to deal with the issues. At the time, I didn't get a chance to ask her a question. She thought that your scope should be wider.

I thought at the time that the treaties really.... The AG spoke about the government's having a system that clearly articulates their obligations under the treaty and monitors their following through on those obligations. I saw that as perhaps a mechanism to deal with issues such as those Lesser Slave Lake identified, as opposed to broadening the mandate of what was happening with specific claims. Do you have any comments on that?

[Justice Harry Slade]

Unfortunately, sitting back here, I couldn't hear much of what was said. My hearing isn't what it once was, so I'm not too sure that I can respond to that. What I will say is that I've heard that where treaties have been established—even modern treaties—issues are always coming up, particularly around budget funding time, over what the obligation is. It's almost as though there needs to be a tribunal to hear claims based on the failure to live up to modern treaties, which would be an absurdity. Where there are arbitration clauses, they should go to arbitration and get it done.

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

Okay.