Evidence of meeting #45 for Public Accounts in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offenders.
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Representative, Department of Indian Affairs and Northern Development
Each is case-specific, of course—
Liberal
Representative, Department of Indian Affairs and Northern Development
It is. It speaks to the fact that the way in which “lawful obligation” is being assessed and interpreted is too narrow and too conservative. I think that's what we're learning from the tribunal decisions.
The best example I can think of would be the decision in Beardy's & Okemasis Band #96 and #97 v. Her Majesty the Queen in Right of Canada. Our approach had been that if a claim appeared to be speaking to an individual benefit, such as the payment of an annuity, versus something that was vis-à-vis the first nation as a whole, we had no authority or mandate to deal with it.
In the Beardy's case, the tribunal clarified that annuity payments were, in fact, a benefit held by the collective. They just happened to be implemented by way of individual payments. That then caused us to go back to look at and think about reviewing all the cases in which we had dealt with annuities and to reopen those that we had closed.
Liberal
Paul Lefebvre Liberal Sudbury, ON
Could you explain to the committee how many of the claims that were sent to the tribunal have since been resolved?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
Are you asking how many decisions we have received from the tribunal?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
I think there are about 20 decisions from the tribunal, if you're referring to the actual decisions.
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
There are about 20 or 21, I think.
Liberal
Paul Lefebvre Liberal Sudbury, ON
What is the time frame we're looking at here? There were 20 decisions in the past...?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
I think the statute came into effect in 2009. It took some time to get the rules created and whatnot. I would say it's in the last seven years.
February 15th, 2017 / 4:55 p.m.
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
From the tribunal, I think so. I could verify that, but I think that's about right.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
Thank you, Mr. Lefebvre.
Go ahead, Ms. McLeod, please.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
Thank you, Madam Chair, and thank you to all the witnesses who are here today.
I know that this particular audit chose not to look at the tribunal or the independence of your office, but when we had Justice Slade at our indigenous affairs committee, he indicated that there are significant challenges in terms of manpower for the tribunal, both because they have to take judges from the Superior Court and because we have a lack of judges' appointments right now.
Mr. Wild and then Mr. Ferguson, even though it wasn't directly the focus of your audit, could you perhaps comment in terms of the challenges of having a pool of judges who are able to sit on the tribunal?
Representative, Department of Indian Affairs and Northern Development
Given that the tribunal is an independent tribunal, we're not involved in the decision-making around the number of appointments or the appointments themselves, so I actually don't have a comment that I can make on whether or not there are a sufficient number of judges at the tribunal at present.
We have heard the concern. I mean, the concern has been made public from various quarters, but I don't have an authority or a role in the actual appointment of the justices.
Auditor General of Canada, Office of the Auditor General of Canada
We actually touched on this issue in an audit we did on Governor in Council appointments. In it we noted that the tribunal said they didn't have enough members on the tribunal to make the decisions.
We felt that the department actually needed to take a stronger interest in the issue, I guess, and to work with the Department of Justice in terms of identifying what would be needed. We understand that the department wouldn't be involved in the appointment process or anything like that, but fundamentally we felt there needed to be some way to identify the number of positions that were needed, and that could be taken into account in the appointment of judges or that type of thing.
I believe the issue was more with the Department of Justice in terms of the actual appointment. I believe that was the case. However, we did feel that the department for indigenous affairs could take a role in helping to understand whether there are enough members on that tribunal and convince the Department of Justice about moving forward to get those members appointed.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
Thank you.
I think it would be reasonable to say that as we continue to have a lack of judicial appointments, it's going to filter down in terms of the specific claims tribunal being able to do its very important work and to get to resolutions to claims.
On my next question, it's pretty low-hanging fruit, I think.... When you have an auditor's report come out, I recognize that there are some complex issues that you have indicated you're going to tackle, but there were two, I believe, that were related to the website. I find it amazing. To me, we should get this done, and it can be done within a month or two. It's not something that should take eight months to a year to accomplish. I believe these were in paragraph 6.80 and paragraph 6.47 of the report.
Why does it take so long to deal with some of the lowest-hanging fruit in terms of having a website that's reflecting what's happening?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
Thank you for the question.
I think part of the issue isn't just what the website reflects; it's that the Auditor General has commented, and first nations have certainly noted, that they don't like the way we've styled some of the information.
Part of the work we're doing with the Assembly of First Nations and others is to work on the kind of information that would be shared so that we have a common understanding of what we're reporting and what it means. They would argue that what we're reporting makes it look like there is more progress than there actually has been, so we're trying to come to some kind of terms.
Again, it's a partly bureaucratic answer. We're revising the overall website content in any event, so that's been caught up in that little, but we are trying to work on that.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
Certainly from my perspective, if it takes over a year to even come to an agreement around websites, we have significant long-time challenges to actually get to the pieces that are going to matter. Again, to me, that should be a quick conversation. It's low-hanging fruit.
That leads me to the working group. I think you have looked at your joint working group as your mechanism for dealing with these issues. Can you tell me who is on the working group, how often you meet, and what progress you have made?
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
I sit on the joint technical working group, and the Assembly of First Nations coordinates the participation of first nations and other participants.
Conservative
Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
There are representatives from the Assembly of First Nations, the Union of British Columbia Indian Chiefs, and the FSIN, the Federation of Sovereign Indigenous Nations, so there's a group of researchers, a group of practitioners, and a group of people from the political organizations.
From the first nations side, they have counsel. We also have counsel. We are in the process of identifying recommendation and have had a few subcommittee meetings where, in the four areas we're working on, we're meeting in smaller groups to make recommendations to the committee that I sit on with my counterpart at the AFN. I think we've had three meetings at the joint technical working group, the more senior one, and a number of subgroup meetings.
You know, to be fair, at this point we've largely focused on the process going forward, so there hasn't been a lot of forward momentum even on the kinds of things you might have characterized as low-hanging fruit, but we are, we think, making some progress. You alluded to it a little bit in one of your earlier comments. We're working at trying to build some trust. The relationship between ourselves and the first nations assembly wasn't all that great, and currently we're trying to rebuild that.
Liberal
The Vice-Chair (Mrs. Alexandra Mendès) Liberal Alexandra Mendes
Thank you very much.
Mr. Christopherson, you have seven minutes.