Debates of Nov. 28th, 1995

Aboriginal Land Claims Commission

[Len Taylor, NDP, The Battlefords—Meadow Lake, SK]

moved:

That, in the opinion of this House, the government should consider the advisability of establishing a new independent aboriginal land claims commission, as recommended in the 1994-95 annual report of the Indian Claims Commission.

Mr. Speaker, it gives me great pleasure to rise today to present to the House this motion, which seeks to bring action on the recommendation of the Indian Claims Commission.

The motion seeks the approval of the House to begin the discussion that will eventually lead to the establishment of a new Indian Claims Commission and process. I am also pleased this motion has been made votable, because this means the members of the House will now have the opportunity to formally respond to the incredible and excellent work the current Indian Claims Commission has been doing.

Before beginning my formal remarks today, I want to thank the Indian Claims Commission for all its efforts in meeting the challenges of its difficult mandate and for preparing the groundwork for the next step in this important and evolving process. I am particularly grateful to claims commission co-chair Mr. Dan Bellegarde and to Mary Ellen Turpel whose legal and research work I borrowed for some of my presentation today.

The idea of a new claims process and policy is not a new one. As I will demonstrate later in my remarks not only did former Prime Minister John Diefenbaker advocate for an independent land claims process, so too did the Liberals as recently as the 1993 election.

However, as is also obvious it appears the current Prime Minister and the Liberal cabinet have to be reminded of their famous red book commitments and be pushed into keeping them. Most of this became very clear to me this summer during the unrest throughout Canada and particularly because of the events which took place at Gustafsen Lake in British Columbia and at Ipperwash in Ontario.

As I listened to those news reports, watched the events unfold on my television screen, read the details in the newspapers and as I talked to concerned individuals across Canada it became clear to me these were not just isolated incidents. Each had a similar message and each was echoed by other events unfolding elsewhere in British Columbia, as well as in New Brunswick and other parts of Canada.

What I and other Canadians were seeing were the expressions of long withheld emotions centred around the meaning and importance of land and jurisdiction over land held by aboriginal people form coast to coast. These emotions fueled by frustration and anger led to occupations or roadblocks which led to the involvement of the police and the exclusion of the legitimate land claims process.

In late summer I called on the Minister of Indians Affairs and Northern Development to get involved not just in the specific disputes under the eye of the media but also in the general approach to land claims resolutions that will have the ability to resolve differences before tensions erupt.

I wrote to the minister and I even questioned him in the House about the possibility of beginning the process that would lead to the establishment of a new independent land claims policy and process.

I was disappointed when the minister responded by saying he had to wait because he needed more direction. The process to begin finding that direction can be begin today. It has been clearly outlined by the Indian claims commission in the 1994-95 report. With this motion I hope the House will tell the minister to get busy, to get at it.

The process, I remind the minister, cannot be dictated by the federal government. It must be worked out and jointly agreed on with the First Nations. Arthur Durocher, writing on land claims reform for the Indian claims commission, states:

There are many problems associated with the present land claims policies and processes. Claims are backlogged and there is a general dissatisfaction on the part of the First Nations. Changes have to be implemented as soon as possible because the longer the impasse drags on, the more difficult it will become to break. It is important that any changes that are done be done in consultation and in partnership with the First Nations. There has to be sufficient political will by the federal government to make any process viable.

In concurring with that statement, the support of the House on this motion will be very useful in securing action on this political will at this important time.

The Indian claims commission in the 1994-95 report came out in July of this year just as some of the land disputes were at their peak. I was surprised therefore when I heard very little comment from the government or the media about the Indian claims commission report itself.

If nothing else, the message from the commissioners at the beginning of the report should have alerted all of us to the importance of the matter in front of us. I will quote from that message:

The ICC is mandated to find better ways of handling land claims. To this end we have used our considerable experience to identify problem areas and recommend solutions that will assist in creating a more expedient, fair and equitable land claims policy and process.

Everything that we have learned as a commission to date indicates that it is imperative to commence the process of reform immediately. The return of native land is central to any real progress on the wide range of problems that face First Nations today. Meaningful self-government and true economic self-sufficiency are dependent upon an adequate land base. It is time for a fair and equitable process.

The commissioners recognized the need for immediate reform of the process. Now it is time for Parliament to do the same.

The frustration felt by aboriginal people throughout Canada has existed for a long time. I am reminded of the comments of former Assembly of First Nations Grand Chief Georges Erasmus, who was quoted in the introduction to a book on the subject, Drum Beat , published in 1989. Erasmus notes that for generations in Canada governments have treated aboriginal people as a disappearing race and that they have administered aboriginal policy accordingly:

Yet we have not disappeared; we have survived, as we have done since long before the appearance of the Europeans, against no matter what odds. Unfortunately, to the present day, governments have been unconscionably slow in coming to terms with the fact that we will always be here, and that our claims for justice, land, resources, and control over our own affairs will never go away, and they must be fairly and honourably dealt with.

There is now a widely accepted view that the current land claims process is not working well and that the pace and conditions for the resolution of land claims conflicts are inadequate.

As Mary Ellen Turpel tells us in her work for the claims commission, claims resolutions in the past 20 years have seen a massive increase in litigation over claims even though almost everyone involved in the claims recognizes litigation is not the best method for addressing land disputes.

The rise in court challenges is a byproduct of a failed dispute resolution process in the claims area and has served to reinforce an adversarial approach on the part of the crown and the First Nations in dealing with these disputes.

It appears, Turpel says, the First Nations and the federal government are headed toward further confrontation and hostility. The only remedy is a reworking of federal claims policies and the establishment of an appropriate and effective process for the

resolution of disputes between First Nations and government over lands and resources.

Turpel is writing in the claims commission's proceedings report, special issue No. 2, dealing with land claims, issued in 1994.

In that same report, the commission co-chairs Dan Bellegarde and James Prentice say very clearly:

Much discussion concerning the reform of the specific claims policy has taken place over recent years; little of fundamental importance has been accomplished. There is an urgent need for reform of the specific claims process to provide a fair and accountable land claims process for First Nations and indeed for all Canadians.

If we are to avoid further violence and bloodshed over unsettled land claims in Canada we must act now before the next confrontation.

That was written in September 1994, before the loss of life occurred at Ipperwash. Obviously action toward a resolution must begin, as the commissioners and others have been arguing, immediately.

It should be noted that the Indian Claims Commission was created in 1991 partly in response to the need for a fair land claims process, but it was acknowledged by everyone that the creation of the commission was an interim step only. The time has come, as it acknowledges, to go beyond the interim measure.

The commission is what has been referred to as a soft adjudicative tribunal in that the recommendations of the commission are not binding on the parties but rather are only advisory in nature. This means that at the completion of an inquiry the parties are not bound by the recommendations of the commission. In the end the federal government still must respond to the findings of the inquiry and the recommendations of the commission, and has only recently begun to do so.

In the case of a band within my constituency boundaries, the Canoe Lake Band, the response to its inquiry took the government more than 18 months to produce. The motion in front of us today suggests the government should take action on the recommendation of the claims commission's most recent report.

Before we run out of time in the debate today I will outline these recommendations. Recommendation No. 1 is the important one. It says that Canada and the First Nations should develop and implement a new claims policy and process that does not involve the present circumstances wherein Canada judges claims against itself.

The commission says the present system involves a fundamental flaw; Canada must judge claims against itself. This is a manifest conflict of interest especially when Canada stands in a fiduciary relationship toward the claimant First Nation.

It is imperative, the commission says, that an independent claims body be established to perform at least the initial assessment of the validity of First Nations land claims against Canada. Mary Ellen Turpel notes in her work: "A full appreciation of the federal government's fiduciary obligations, which represent a considerable and serious duty to act in the interests of the First Nations, has been the glaring omission in the claims process".

In the absence of a new policy, the claims commission brought forward five other recommendations which must be implemented in order to make the existing but temporary process more fair. The commission's second recommendation is to put fairness into the current policy.

The 1994-95 report says:

When First Nations submit specific claims to Canada they are encouraged to include for consideration the legal opinion of their lawyer along with their historical research. However, when Canada communicates its decision to accept or reject the claim, it relies on solicitor-client privilege and refuses to disclose its legal opinion from the Department of Justice.

The claims commission says that Canada has an obligation to provide that legal opinion.

To do less fails to meet the requirements of the fiduciary relationship, a relationship that has been found to exist by the Supreme Court of Canada in cases such as Sparrow. The substance of Canada's legal opinion must be exposed to full public scrutiny if justice is to be done and seen to be done.

The Canoe Lake report was not responded to until 18 months had passed. The commission notes in its third recommendation that situations like this are unacceptable. In calling for a response protocol, it says this type of response is fair to neither the claimant First Nation nor to the people of Canada.

Recommendation No. 4 deals with mediation and suggests that government council engaged on matters before the commission should be given the same broad mandate to consider, recommend and negotiate settlement it would have if acting for the government in litigation over the same claim.

The commission notes that from its inception the commission has vigorously sought to advance mediation as an alternative to the court and inquiries, both of which tend to be adversarial in nature.

Unfortunately, it says, one of the greatest obstacles in the settlement of specific claims is that the Department of Justice typically regards its own legal opinions as being determinant on the questions of whether an outstanding lawful obligation exists on the part of the government.

If the lawyer concludes that no such obligation exists, the government assumes there is no place for mediation. Since mediation is essentially consensual and both parties must request it, an opinion unfavourable to the claim ends the prospect for mediation before it can even begin.

The commission is aware that some claims might qualify for reconsideration based on factors outside the legal opinion, but there is no authority for counsel representing Indian affairs to do so without access to mediation measures as suggested by the commission.

The fifth recommendation deals with the need to identify and review all claims that were rejected based on the ban of pre-Confederation claims that was lifted in 1991. The commission wants the government to take the lead and begin the reviews and not leave the onus on the First Nations to ask for a review of the claims that were rejected prior to the alteration of the specific claims policy in 1991.

Most important, the sixth recommendation of the commission is that Canada stop insisting on the express extinguishment of aboriginal rights and title as part of the settlement of specific claims. The commission says this is grossly unfair since the claims policy is not meant to deal with aboriginal title and/or rights, and Canada ought not to insist on their extinguishment as part of the settlement of a specific claim.

This measure has been supported in the recent fact finding report written by Mr. Justice Hamilton, entitled "A New Partnership", in which he said:

Aboriginal people seek the recognition, not the surrender of their aboriginal rights. They are prepared to have the extent of their future rights to land and resources spelled out in a treaty. They are prepared to recognize the rights of others.

The Liberals have also agreed with this, at least the Liberal Party, ahead of the government. The red book says that "in order to be consistent with the Canadian Constitution, which now recognizes and affirms aboriginal and treaty rights, a Liberal government will not require blanket extinguishment for claims based on aboriginal title".

Prior to the general election in 1993, the leader of the Liberal Party, now the Prime Minister of Canada, said in Saskatoon: "A Liberal government, in consultation with aboriginal peoples, would undertake a major overhaul of the federal claims policy on a national basis".

In the red book, that now famous catalogue of Liberal promises, the Liberals acknowledged that if aboriginal communities are to become self-sufficient they must have an adequate land and resource base upon which to grow. That is why a Liberal government is committed to overhauling the land claims policy in ways that will make the process "more fair, more efficient, and less costly".

Two years after the election, it appears that we have to push the Liberals into meeting their own promises-not just the claims commission, not just aboriginal people from coast to coast, but the House of Commons as well. If the Liberals have failed to deliver on this promise and if we must push, then push we will, because this is one promise that is worth fulfilling.

I want the House to know that prior to putting this motion on the Order Paper and having it called for debate today I took the issue to my own party at its national convention in October of this year. I am pleased to say that support for a new claims commission had the unanimous support of delegates attending the national convention of New Democrats. They, like me, consider the issue to be of critical importance to our nation.

The Grand Chief of the Assembly of First Nations, Ovide Mercredi, played a crucial and important role during the land occupations this past summer. The grand chiefs and the chiefs of the AFN have been doing a fantastic job in preparing for a new land claims policy and process. I ask the Minister of Indian Affairs to ensure that the AFN is central to any decisions that are made in this regard.

I conclude my remarks today by again referring to the work of Mary Ellen Turpel, who says that consensus for an independent claims commission is evident but that concentrated effort and good will are needed to take the proposal for such a commission from the stage of political consensus to one of policy implementation in a legislative framework. It cannot be done unilaterally by government. Implementing these proposals will require a process whereby First Nations leaders and federal ministers come together over a short period of time to decide on an implementation strategy to draft the protocol and develop legislation and resolutions.

Because of lack of time I did not talk about the expiration of the mandate of the joint working group and the good work the joint working group completed. However, I must say that this is the type of process that needs to be reactivated with a broader mandate.

I will quote Mary Ellen Turpel one last time:

The agenda for land claims reforms is stalled at present. This is a tragic situation, given that so many options are available for immediate progress and all parties in the political process have identified a common set of problems and made a commitment to reform. If we continue to delay the process of land claims reform, we face further hostility as the prospects for an enduring peaceful relationship between First Nations and the crown grow dimmer.

Today, at the beginning of the debate on this votable motion, I thanked the chiefs for their patience and their unending commitment to their people. I thank the Indian Claims Commission for their excellent work in moving this critical issue forward. I urge all members of the House to support the motion so that the Minister of Indian Affairs and the government know that it has the support for change, which must be made sooner rather than later. I ask that I be given the opportunity to close this debate when that time comes.

[Jack Iyerak Anawak, Liberal, Parliamentary Secretary to Minister of Indian Affairs and Northern Development]

Mr. Speaker, it is a pleasure for me to respond to the motion by the hon. member for The Battlefords-Meadow Lake and to debate the claims policy and the establishment of a claims commission.

The government has been looking for ways to promote a commission that would be fair and would be seen to be fair to all aboriginal and non-aboriginal Canadians who are affected by the settlement of land claims.

The hon. member for The Battlefords-Meadow Lake has been a strong advocate in the House of policies aimed at resolving the outstanding issues relating to the claims process. We have listened to his advice and are looking forward to hearing what the Reform Party has to add.

As for the Liberal government, our approach to the claims process was spelled out in our 1993 election platform. In the red book we placed aboriginal issues at the centre of the public policy agenda. We devoted one of the eight chapters in Creating Opportunity exclusively to aboriginal issues and raised the awareness of the impact of other policies on aboriginal Canadians throughout the document.

We promised the role of our government would be to provide aboriginal people with the necessary tools to become self-sufficient and self-governing. We also said that our priority would be to help aboriginal communities in their efforts to address the obstacles to their development and help them marshal the human and physical resources necessary to build and sustain vibrant communities.

We promised our government would build new partnerships with aboriginal peoples based on trust and mutual respect. A fair and effective land claims process is essential for those objectives. The resolution of the claims must be a priority for all Canadians.

Both aboriginal and non-aboriginal Canadians require certainty with respect to land rights so that we can get on with the building of the economy, creating jobs and growth, and making our communities better places for our children.

In the red book we acknowledged that the current process for resolving land claims could be improved. We said a Liberal government would implement major changes to the current approach, and we have been working toward that goal.

We have been working alongside the Assembly of First Nations to find a better way to proceed with the resolution of claims. The Minister of Indian Affairs and Northern Development has received several suggestions. Among them is a proposal for an independent Indian land claims commission, as recommended in the annual report of the Indian Claims Commission and as advocated by the hon. member for The Battlefords-Meadow Lake.

We on this side of the House have no objection to such an independent commission. In fact, in the red book we stated that "A Liberal government would be prepared to create, in co-operation with aboriginal peoples, an independent claims commission to speed up and facilitate the resolution of all claims". This shows that we do not oppose the principles outlined in the hon. member's motion.

However, I would like to point out to the House a key phrase of the commitment from the Liberal policy platform. It is that we would create the independent claims commission in co-operation with the aboriginal peoples. Building a consensus among the aboriginal peoples will require time, and we cannot act unilaterally. We cannot impose a solution that will be supported by some but not by others.

One of the major issues at stake is whether a new independent claims commission will be a court-like system with binding judgments or a mediation system with functions similar to those the Indian Claims Commission now performs.

Another issue is whether we can find a better way to bring matters to the attention of the commission. As hon. members are aware, under the current system a claim must be rejected by the Indian affairs department before the matter is brought before the commission. The minister has invited the Assembly of First Nations to provide substantive comments on concrete proposals for change. In co-operation with the First Nations, we are examining how the claim policies can be overhauled within the climate of financial restraint that affects us all.

The Assembly of First Nations has embarked on a project that will involve developing terms of reference for a joint Canada and First Nations review of the Indian Claims Commission. We will have to reach a consensus on these and other issues before we can reform the current system. We need directions from the First Nations on what kind of system they want.

In the meantime, the government has taken the steps required to make sure the system now in place works as efficiently as possible. When we look at what has been accomplished in the past few years, it becomes quite clear that the current system can be used more effectively than it had been before the red book commitments regarding claims process reforms were made.

Consider these figures: After 1990-91 the total cumulative settlements for specific claims numbered only 43. By 1994-95 we have more than tripled that figure to 142. Since taking office this government has settled 45 specific claims. In 1994-95 we settled 18 different specific claims, for a total of nearly $79 million. That is money that will go into aboriginal communities. It will create

jobs for aboriginal as well as non-aboriginal people. It will improve living conditions and it will make aboriginal people partners in the development of a strong and dynamic Canadian society.

Today we are involved in negotiations on another 90 specific claims or are in the process of reviewing another 240 claims submitted by the First Nations. We expect that by the end of the 1995-96 fiscal year we will have settled another 20 to 30 specific claims and we will also continue to receive further claims, which will have to work through the current system until a better system is devised in co-operation with First Nations.

I am certain the hon. member for The Battlefords-Meadow Lake appreciates these points. He wants what is fair for aboriginal people in Canada, as does this government.

[Editor's Note: Member spoke in Inuktitut.]

[André Caron, Bloc, Jonquière, QC]

Mr. Speaker, I welcome this opportunity to speak in support of the motion standing in the name of the hon. member for The Battlefords-Meadow Lake.

The motion reads as follows: That, in the opinion of this House, the government should consider the advisability of establishing a new, independent aboriginal land claims commission, as recommended in the 1994-95 annual report of the Indian Claims Commission.

Anyone who has followed the issue of aboriginal land claims in Canada for a number of years will realize it is a matter of astonishing complexity. The First Nations were here in Canada before European immigrants came to settle the land, as we used to say. The aboriginal peoples occupied certain lands. In the past 10, 15, 20 or 30 years they have started to realize certain rights to those lands still existed, and various First Nations started filing land claims.

It stands to reason that people living in often difficult social and economic circumstances should want to establish a land base where they can develop their potential, improve their situation and maintain their identity as a nation, as a people.

It is therefore entirely normal that the various First Nations should file these claims. Now it so happens that certain things have been accomplished, and the Parliamentary Secretary to the Minister of Indian Affairs told us a few moments ago that certain claims had been settled with First Nations. Claims are now being negotiated, and it is expected that a number of claims will be settled within the next few years.

However, it is a fact that the existing mechanism is not perfect. The process is very slow. Some very relevant questions are being asked about the impartiality of the system, because under the present system, various aboriginal peoples and communities file a claim, which is then examined by the appropriate federal authorities.

The federal government is almost in the situation of being a judge while, at the same time, having fiduciary responsibilities toward various native peoples. I think the government is, in a way, in a conflict of interest situation, where often, because of political imperatives, it cannot easily ensure quick claim resolution of claims, in my opinion.

Clearly, at this point, the process becomes blocked, despite the best intentions of the government, and I do not doubt them. But I imagine that if, as proposed by the member for The Battlefords-Meadow Lake, we could set up an independent native territorial claims commission, we could clarify the whole process. We could clarify it for all Canadians, and we could clarify it for the various first nations.

I think it is important to clarify the process not only for the native populations, but for the people of Canada. Since becoming more closely involved with native issues, because I sit on the House Standing Committee on Aboriginal Affairs and Northern Development, I have been talking with my constituents in my riding and in my region. I realize that most people are sympathetic to the claims of native peoples, but are often critical because they consider the claims at times exaggerated and not in keeping with what they consider reality.

We often see maps in the paper, of either Quebec or Canada, depicting native territorial claims. If we superimpose a map of the land claims made by the various First Nations in Quebec on a map of the province, we can see that their claims cover almost all of Quebec.

I think that this is likely to cause many people to fear and be concerned about legitimate native demands, and even to reject them. People feel that their claims are out of all proportion to the populations involved.

The various native communities in Quebec may number 50,000, 60,000 or 65,000 people, depending on how you count them. People are asking how 60,000, 65,000 or even 80,000 natives can claim the Quebec territory and, in a way, challenge the rights of six or seven million Quebecers now living on this territory.

This is the kind of situation that could easily lead to prejudice developing. Just look at what is reported in the press and listen to open line programs. Aboriginal land claims are often opposed on the grounds that they are viewed as undue and unfounded.

I think that this situation ought to be resolved as quickly as possible. At the rate settlements are reached these days, according to the hon. Parliamentary Secretary to the Minister of Indian Affairs and Northern Development himself, I think that this issue is not about to disappear; it will remain hot and red for quite some time. If we take too long to resolve the situation, there is risk of a

rejection reaction on the part of non-natives in Canada. In addition, decisions might be made at the political level that do not fairly reflect the legitimate demands of aboriginal people.

It is important that the federal cabinet and the Liberal government fulfil the promises made in the red book in 1993, when they stated clearly that "the current process of resolving comprehensive and specific claims is simply not working. A Liberal government will implement major changes to the current approach. A Liberal government will be prepared to create, in co-operation with aboriginal peoples, an independent claims commission to speed up and facilitate the resolution of all claims". This is precisely what the hon. member for The Battlefords-Meadow Lake and the Indians Claims Commission are asking for.

The federal government should act as quickly as possible for the good of all Canadians and for the good of the aboriginal nations that live on Canadian territory and have valid claims to parts of that territory.

Everyone agrees. Earlier, the parliamentary secretary to the Minister of Indian Affairs and Northern Development said: "We will probably do it in the future. We do not know yet what will be the nature of the commission. However, I think we have been talking for two years under the present government, and previous governments have also dealt with these questions.

Therefore, in the interest of Quebecers, Canadians and all the different aboriginal nations, I think it is important that the government examines as quickly as possible the possibility and the urgency of creating a commission like that one so that at long last Canada and Quebec can solve the problem of aboriginal claims because it is vital for the native people. It is vital for them to keep their identity, which is to important. It is crucial to preserve the identity of a people. To preserve that identity, the territorial claims must be settled to that these people can have the necessary basis for their economic, cultural and social development.

[Garry Breitkreuz, Reform, Yorkton—Melville, SK]

Mr. Speaker, I thank the hon. member for The Battlefords-Meadow Lake in my home province for bringing this motion forward.

It is always a pleasure to speak to issues involving Indian people. I spent two years on an Indian reserve at Wollaston Lake in northern Saskatchewan, so I have a pretty clear idea of what barriers exist for the aboriginal people living in and around these communities. My constituency of Yorkton-Melville has five Indian reserves which I represent in the House. Therefore I have more than just a passing interest in the subject of Indian land claims.

The motion we are debating asks the government to "consider the advisability of establishing a new, independent aboriginal land claims commission as recommended in the 1994-95 annual report of the Indian Claims Commission". I read the annual report referred to in the motion and the commission's recommendation No. 1 states: "Canada and the First Nations should develop and implement a new claims policy and process that does not involve the present circumstances wherein Canada judges claims against itself".

The last time I spoke in the House on Indian land claims was during the debate on Bill C-33 regarding the Yukon land claims in June 1994.

The Reform Party is way ahead of the government in the area of aboriginal affairs policy. I would like to bring everyone up to date on the progress we have made.

In June 1994 I was one of several Reform MPs who had the privilege of participating in the Reform Party's aboriginal affairs task force. We met with many native people and even made a trip to Norway House in northern Manitoba. Mainly the concerns were about self-government, mismanagement of band funds, patronage and nepotism, and land claims.

In October of this year the leader of the Reform Party and Reform's aboriginal affairs critics released the party's aboriginal affairs task force report. The report was prepared following many public meetings held all across the country, but mainly in western Canada. Our task force met with native and non-native people. We were disappointed that for the most part Indian leaders boycotted the Reform Party's meetings.

Now, after the release of our 14-point plan, the aboriginal leaders are complaining that we did not consult them. Every band in western Canada was invited to the meetings and the vast majority of Indian leaders refused our invitation.

I am sorry that I do not have time to outline the Reform Party's complete 14-point plan in the House today, but here is what our task force report said about land claims:

Point number one: Indian treaties will be fully honoured according to their original intent and in keeping with court interpretation.

Point number four: Land claim agreements and self-government agreements will be negotiated under the principle of equality for and among all persons. Settlement of land claims will be negotiated publicly. All settlements will outline specific terms, be final and conclude within a specific time frame. Final settlements will be affordable to Canada and the provinces.

Point number five: Individuals residing on settlement lands will have the freedom to opt for private ownership of their entitlements.

Point number six: Property owners forced to defend their property rights as a result of the aboriginal land claims will be compensated for the defence of the claim.

A few weeks ago I was on a CBC Saskatchewan radio phone-in show discussing and debating the merits of our proposed aboriginal affairs policy. After I got home, I got a call from a woman, a native elder from a nearby community. She was positively excited about our ideas. She said that she wanted to start getting a petition signed supporting our new approach.

Here is how her petition reads: "We, the undersigned citizens of Canada, who also happen to be of Indian ancestry, draw attention of the House to the following: That we oppose in principle the government's approach to self-government and land claim settlements which would entrench forever a top down, paternalistic, race based system of government for Indian people run by bureaucrats, band leaders and tribal council leaders for the primary benefit of the bureaucrats, band leaders and tribal council leaders, not necessarily the individual members of the band; furthermore that we support in principle the Reform approach for self-government and land claim settlements which would give each individual Indian person real choices about how we want our money to be paid to us, how we want our benefits, entitlements and services to be delivered to us and whether we want our land to be owned and managed by the band or owned and managed by ourselves privately. Therefore your Indian petitioners request that Parliament move and support legislation which will protect the treaty rights, equality rights, democratic rights and property rights of each individual Indian band member, thereby giving us the right to opt for private ownership of a share of any land entitlements and the right to opt to receive our money and benefits directly from the government or through the Indian self-government".

Is it not very interesting that that comes from the native people themselves? This petition is being circulated by an Indian elder among aboriginal people in my constituency. It is clear we cannot continue the way we have been.

It is clear from everything I have seen during the two years I lived and worked on an Indian reserve in northern Saskatchewan that more money is not the solution. In fact more handouts simply perpetuate the problem. Whenever handouts, compensation or any benefits are given to anyone in society without that person being held accountable and responsible, it will eventually harm the one receiving it. That harm will spread like a cancer to the rest of society.

It does not matter whether the person or group receiving the handout is native or non-native, welfare has failed wherever it has been tried. Now native communities and native people are feeling the full effects of receiving handouts with no accountability, handouts given with no clear stated objectives and handouts given with no means by which to measure progress. The Reform Party's recommendations are made with the sincere intent to correct the colossal mistakes of years past.

Now we come to the motion we are debating this evening. Our task force was silent on the process by which land claims would be settled. It follows that we need to establish some kind of an independent commission to accomplish this goal. After reading the annual report of the current Indian claims commission it is clear that the current system is not very effective. There seems to be a lot of overlap and duplication which creates much bureaucracy and a colossal waste of money with little being accomplished.

The other aspect we must consider is the overall direction the Liberal government is headed in using the current settlement process which ultimately confers special status, special entitlements and creates separate enclaves based solely on race. It is not a policy and process based on equality; this is a policy of apartheid.

Before an independent aboriginal land claims commission could be effective, the negotiating principles have to change. We would argue that the principles espoused by the Reform Party's aboriginal affairs task force are a good place to start. As long as the negotiating principles can be changed so our starting point is accepted by all Canadians, then I would have to agree with the Indian claims commission recommendation.

It does not make much sense for the department of Indian affairs to be negotiating agreements and then also to be the final arbiter for the Government of Canada. I have to agree there is an obvious conflict of interest. Therefore, it is obvious we need some kind of independent process.

What choices do we have for an independent land claims process? We have an independent aboriginal land claims commission which I suppose would replace the current Indian claims commission as proposed in the motion we are debating today. We have a treaty ombudsman as recommended by Mel Smith, Q.C., a constitutional expert, in his recent book, Our Home or Native Land? , or we have the court system.

Until we have reconstructed our fundamental negotiating principles for dealing with land claims and until these fundamental negotiating principles have the support of the majority of people in Canada, I do not think it is possible to say which option is the preferred one.

This having been said, I would like to give my qualified support to the motion put forward today by my hon. friend from The Battlefords-Meadow Lake. After all his motion just says that this House "consider the advisability of". If this House considers the advisability of replacing the current land claims commission with an independent body, just maybe we will be able to have a full

public debate about the terms of reference of this new independent aboriginal land claims commission.

[Pierrette Ringuette-Maltais, Liberal, Madawaska—Victoria, NB]

Mr. Speaker, the motion is:

That, in the opinion of this House, the government should consider the advisability of establishing a new, independent aboriginal land claims commission, as recommended in the 1994-95 annual report of the Indian Claims Commission.

I appreciate the way the hon. member for The Battlefords-Meadow Lake has phrased this motion. We are considering the advisability.

The hon. member knows this is a complex issue. He knows we cannot act precipitously. He knows there are many different perspectives and that First Nations themselves have some reservations about how an independent claims commission would affect the claims process.

The Minister of Indian Affairs and Northern Development has been discussing these issues with the First Nations. We hope a consensus will be reached but in the meantime the debate over the hon. member's motion will help this House focus on some of the issues involved.

I would like to remind the House of the process now in place. It is a process that has been used successfully in the past although there is certainly room for improvement. At present, there are six steps to processing a specific claim.

In the first step the First Nation submits a claim along with supporting documents to the specific claims branch of the Department of Indian Affairs and Northern Development. The branch then determines whether the claim meets the submission criteria of the policy.

Second, the submitted research contained in the supporting documents is analyzed and verified for completeness. The department works with the First Nation to prepare a historical report and analysis. Both parties must agree on the report. This is what is known as the research step, and it can take a long time to complete.

The third step is acceptance or non-acceptance of the claim. The specific claims branch of the Department of Indian Affairs and Northern Development obtains legal opinions on the claim and a decision is made to accept or not accept the claim for negotiation. If the claim is accepted, we move on to the fourth step: negotiation. The specific claims branch negotiates with the claimant First Nation on the value of the losses and prepares an authority to settle.

In the fifth step, the specific claims branch and the claimant First Nation agree on compensation and provision for settlement and agreement in principle is struck. The agreement is drafted by the Department of Justice and First Nation lawyers into a formal settlement agreement. Finally, the settlement agreement is ratified and implemented.

This is a long and painstaking process. There is a fast-track procedure for claims less than $500,000 in which some of the six steps are shortened.

Where does the Indian Specific Claims Commission come into play? If in the course of these steps Canada turns down the claim, the First Nation has a number of options: it can withdraw its claim; it can move to litigation; it can present new documentation and legal arguments; or the First Nation can request a review of the department's decision by the Indian Specific Claims Commission. The commission has been established to resolve such disputes and it can subpoena records and witnesses. It can help the government and claimant First Nations arrange mediation.

The commission's 1994-95 annual report indicates an involvement in mediation of five claims. The commission also pointed out in this report that it had received 98 requests, 42 of which were in progress. The commission reported eight completed inquiries.

Let me tell members about one case where the ISCC was instrumental. In the Chippewas of the Thames inquiry, the Muncey land claim, the First Nation had rejected settlement twice before the commission became involved. The original point of contention about the surrender of land was resolved early in the ISCC process and a fresh settlement agreement was negotiated and ratified on January 28, 1995.

Let me briefly explain how the commission works. If the department has not accepted a claim, the commission can make recommendations on whether the First Nation has established that Canada has an outstanding lawful obligation. If the department has accepted the claim, but the First Nation disagrees with the compensation criteria, the commission can recommend which compensation criteria should apply to the negotiation and settlement of the specific claim.

There are five steps the Indian Specific Claims Commission goes through. First, it receives a First Nation's request for a review of the Department's decision. Second, it decides whether or not to review the decision. Third, the ISCC gathers all relevant information from the First Nation and Canada in relation to the specific claim, including the opinions of experts. The ISCC will also go into the claimant community and record the testimony or information of the members of the First Nation. Fourth, representatives from both the First Nation and the government argue their case by setting out their interpretation of facts, legal views, and conclusions. Finally,

the commission makes its recommendations based on the existing specific claims policy.

The commission does have some limitations. It cannot consider a claim based on unextinguished aboriginal title. These matters would be the subject of a comprehensive claim under a separate policy.

What is the value of the commission? First, it provides an opportunity for a body other than a court to review Canada's decision. Second, the commission has been successful in bringing both sides together with an impartial, neutral third party as a mediator. The mediator has no decision making power, but he or she does have the power to direct and interpret the exchange of information. This influences perceptions, preferences and demands of both parties and it often implies possible lines of agreement.

This is the system that now exists. The system has its challenges. First Nations have expressed a concern that the commission is named by the government and therefore, in spite of the best intentions, cannot shake off the appearance of bias. The process is cumbersome. The commission intervenes only after a First Nation has been turned down by the department.

We will explore many options in the course of debating the motion from the hon. member. However, what we must bear in mind is that no changes should be made without the concurrence of the First Nations.

The minister has been consulting with the First Nations and I am very confident that a consensus will be reached. In the meantime, this exploration of the issues arising from this motion is most welcome.

[The Acting Speaker (Mr. Kilger)]

The time provided for the consideration of Private Members' Business has now expired. Pursuant to Standing Order 93, the order is dropped to the bottom of the order of precedence on the Order Paper.

It being 7.44, the House stands adjourned until 2 p.m. tomorrow, pursuant to Standing Order 24.

(The House adjourned at 7.44 p.m.)