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.