Mr. Speaker, I am pleased to have the opportunity to join the debate on Bill C-60. I want to thank my colleague from the Bloc Quebecois for his thoughtful remarks. I find I can associate myself with his points of view quite readily. We have obviously come to similar conclusions and apprehensions about some of the shortcomings or things yet to be explained or clarified in the bill.
It has been interesting to research this long awaited bill that will be the impetus of the creation of the independent claims body. We feel that this is a progressive move. It would expedite and alleviate some of the backlog that exists in the specific claims area. The research we have been doing has been instructive, to me at least, in many areas. I would like to outline some of the things we found interesting, possibly to help people understand this debate.
There are two types of Indian land claims. I am not sure that is clear in the general public's mind. I am not sure it is even clear in the minds of some of the other speakers from other parties I have heard, the Bloc Quebecois being the exception.
There are comprehensive claims, which arise in areas where treaties have not been made between Canada and first nations to address and reconcile issues of existing aboriginal title. Then there are specific claims that arise where Canada has failed to fulfill the terms of treaties or its legal obligations to properly administer and protect first nations land or other assets, usually meaning finances.
Specific claims come from laws and agreements respecting Indian lands dating back to 1763. By virtue of the royal proclamation of 1763 the crown proclaimed that:
“only the Crown could acquire land from the Indian Nations of North America”; and, “the Crown would make arrangements with Indian Nations with respect to land to protect them from great frauds and abuses...”
These colonial laws and practices were the foundation for the crown's policy of making treaties with Indian nations for peaceful co-existence and for land for incoming immigrants. Canada has the constitutional responsibility therefore for Indians and lands reserved for Indians, and has administered and managed Indian land and assets under the Indian Act since the 1870s. It is important to note that the royal proclamation did not create rights. It recognized property and land rights of Indian nations and it set up a process to acquire lands from Indian nations.
Specific claims occur when Canada fails to set aside enough land under treaties. That is one example where there might be a specific claim file. A specific claim may be filed where reserve land was taken away illegally or in contravention of the laws or in contravention of certain treaties. A specific claim could also occur where Canada has a responsibility for managing first nations lands and assets but fails to adequately protect those assets. Those are the circumstances under which we find ourselves at the wrong end of a specific claim by a first nation aboriginal people.
Specific claims are brought against the Government of Canada for failing to meet its legal obligations. Specific claims are legally enforceable because they arise from duties and obligations that Canada has in relation to first nations treaty and property rights. The claims are legal liabilities which remain until they are settled by the Government of Canada. These are unfunded liabilities that Canada is owing. Canada recognizes that as soon as these claims are validated it must settle them. The conflict occurs when Canada finds itself in a conflict of interest situation. I will speak more about that later because the very claims that are being made against the Government of Canada are being adjudicated by the Government of Canada. There is room for conflict, as anyone can plainly see.
It was not until the early 1970s that first nations were able to examine why their lands and assets were lost under the administration of the federal government. Part of the reason these claims were not brought forward earlier was due to a clause in the Indian Act which prohibited Indians from making claims or seeking legal advice to make claims. That clause was repealed in 1952. From the 1920s until 1952 aboriginal people were prohibited from this by law, and in fact lawyers were prohibited by law from taking money from aboriginal people to represent their views in a land claim issue. The practice was outlawed and aboriginal people were denied the recourse of the courts.
One might wonder how the existing specific claims policy worked to date. That is why we find ourselves here today trying to find another conflict resolution process because the existing specific claims policy has been slow, inefficient, ineffective and costly. The costs of negotiating claims sometimes equals the cost of the settlement. Claims are taking as long as 7 to 10 years to finalize. First nations believe that the claims process should be fair and impartial first of all, and that it should be expedited because, as the old saying goes, justice delayed is justice denied.
The idea of an independent body has been called for since the 1940s. In recent history it was recommended by the aboriginal justice inquiry in Manitoba and the Royal Commission on Aboriginal People in 1996. The Canadian Bar Association has been calling for this, and even the standing committee on aboriginal affairs, on which I sit, have all recommended that an impartial and independent body to deal with specific claims be established forthwith.
As a result of the Oka crisis, which revolved around a land claim, the federal government established the Indian Specific Claims Commission in 1992 as a temporary and interim body to hear appeals on claims that were rejected by Canada. However the Indian Specific Claims Commission can only make recommendations to Canada and therein lies the conflict of interest, because the Government of Canada ultimately will decide the merits of the case. A recommendation can come from the specific claims commission and the government will decide whether to pay out or not.
The minister of Indian and northern affairs at that time, the hon. Tom Siddon, publicly stated that the interim body would provide a degree of fairness under the existing policy. First nations of Canada sought agreement on improvements to federal policy but he expressed his concern as to how independent and how effective it could be.
First nations estimate that at the current rate of settling claims under the Indian Specific Claims Commission, it would take 150 years or more to settle the outstanding backlog. Clearly something must be done. The federal government has a backlog of claims dating back to the early 1970s. We have heard the figure of 480 outstanding claims used in the House of Commons today and there are another 60 plus claims with the Indian Claims Commission.
The Indian Claims Commission only accepts claims that have been rejected by the specific claims branch. For the past 12 years first nations have worked jointly with Canada and have waited for a collaborated effort to dialogue with the federal government to resolve these outstanding debts. The cost of settling claims increases every year. The longer it takes to settle a claim, the more it costs.
Since 1997 the Joint First Nations-Canada Task Force, the JTF on claims policy, has been working to develop joint recommendations on claims policy reform. The JTF has developed a model for an independent claims body through positive interaction and dialogue that it believed was a fair, effective and impartial way to settle specific claims in Canada.
The Government of Canada committed itself to work co-operatively with first nations in developing this kind of a fair and independent claims resolutions process. This type of process followed up on the federal government's red book promises and action policy “Gathering Strength--Canada's Aboriginal Action Plan”. The commitment then was to work with first nations to design the new independent claims body.
The federal government did not respond to the joint task force report for 18 months. When it did respond it was with a counter proposal to establish the independent claims body through legislation without any input at all from first nations. The federal counter proposal would appear to incorporate some of the basic elements of the JTF model, such as the commission and a tribunal, but there are key omissions, limitations and voids within the proposed legislation now that differ greatly from the recommendations of the joint task force which is the fair way to put together agreements like this.
One of the specific differences from the joint task force and the actual legislation that concerns the parties now is the arbitrary cap of $7 million, that no claim greater than $7 million can be submitted to this process. The problem is that many of these claims are over $7 million. Once someone stipulates this set of rules and agrees to put his or her claim through this mediation process, that individual forgoes the right to the avenue of recourse through the courts at least while it is in the process.
The unfairness comes in the following way. What if the claim is $8 million? There is a choice. One could fight it through the courts for six, seven, eight, ten years or one could avail oneself of the expedited mediation process of the independent claims body and settle for a maximum of $7 million. That first nation would have to make a judgment call and leave money on the table because of this arbitrary ceiling of $7 million.
It was not clear until recently just how this cap would operate, whether it would apply to the ability of the tribunal to make recommendations on the validity of claims or whether the cap would include outstanding negotiation costs and loans, et cetera. We now know that the legal and negotiation costs would become part of that total $7 million cap. As we heard earlier sometimes the cost of negotiation is equal to the settlement. First nations could be working on repaying an outstanding loan or debt who might also have $2 million, $3 million, $5 million worth of legal bills and the total maximum claim would be $7 million. That would be deducted from their maximum claim. That is a real concern.
We are concerned that even with an expedited process without the resources to deal with this huge backlog of claims, no real progress would be made. We do not see any major increase in the budget for settlements. There was concern over the operations budget and the continuance of loans funding to finance first nations participation in the process. Do we know that first nations would still qualify for loans so that they can even represent themselves during this new independent claims process? That is yet to be determined.
The one thing all parties agree on is the appointment process. The appointment of people to the commission or the tribunal would be a crown prerogative and not a joint process as promised. This is one of the key recommendations of the joint task force. To be an independent body it should not be made up of patronage appointments by the ruling party, the government. That is what we are faced with today and that does call into question the truly independent nature of this independent claims body.
We are concerned that the fear of patronage appointments would jeopardize the effectiveness of this new body. The cap of $7 million would exclude large claims and may force claims that are right about that level to accept the settlement at a value less than what they rightfully deserve because the claimants cannot afford to keep fighting a long and exhaustive legal battle.
We are critical that there is no significant increase in the budget for the new processing of claims and settlements. We believe there is a question of the true independent nature of the claims body and we believe there is a risk of conflict of interest because we still have the Government of Canada hearing the claim against the Government of Canada.
Surely there is a bias there. It is not independent. There is no commitment to first nations that they will have a role to play in the three year review. The bill calls for a three year review to measure the effectiveness of this new body, but the first nations will have no input so the government will be auditing itself. Again it is a problem of a conflict of interest when the government is charged with the responsibility of measuring how well it did. That can get politicized.
In our initial review of Bill C-60 we have identified a number of departures from the 1998 joint task force report, which may compromise the ability of the new body to assist in resolving claims in a fair and impartial manner. Those are some of the concerns.
It is worth looking at what the independent claims body will seek to replace or to act as an alternative to, and that is the Indian Claims Commission. I was sitting in the House of Commons the last time the independent claims commission co-chairs made a presentation of their annual report. It was on May 29, 2001. I would like to briefly visit that to explain some of the points they made.
They raised the issue as background that in 1927 it was an amendment to the Indian Act that made it illegal for any person to accept payment from an aboriginal person for the pursuit of land claims. As I have said, this provision remained in effect until 1951. It was not until 1973 that the decision of the supreme court in regard to Frank Calder of British Columbia confirmed that aboriginal peoples' historic occupation of the land gave rise to legal rights that survived European settlement, thus recognizing the possibility of present day aboriginal rights to land and resources. That ruling prompted the federal government to elaborate a policy to address unsettled land claims, both specific and comprehensive. What a monumental supreme court ruling that was.
The co-chairs of the Indian Claims Commission stated “The specific claims policy has long been subject to criticism for establishing a system in which government rules on the validity of claims against it”. It was a clear-cut case of conflict of interest or at least the possibility and the risk of conflict of interest. In the aftermath of the Oka crisis recommendations regarding land claim reform, the Indian Claims Commission was established by order in council. I want to point that they also make reference to this: the creation of an independent commission with broader powers has also been on the Liberal government's agenda since the 1993 pre-election red book and was a recommendation of the Royal Commission on Aboriginal Peoples.
We have been promised this independent claims body at least since the government took office in 1993. It was in their pre-election red book. It has been a long, painful process waiting for this to take place, and as a previous speaker said, I hope they can settle claims faster than they could live up to their red book promises.
I want to give an example of what types of specific claims have been dealt with by the Indian Claims Commission and what things succeed and what things fail. Specific claims are, as I have mentioned, outstanding lawful obligations owed by the Government of Canada to Indian bands. In general terms, they arise from breaches of treaty, breaches of trust and circumstances such as the theft of land, and flagrant violations of duties of the crown.
Often these are clear-cut cases and litigation should not have to be the only avenue of recourse to get satisfaction on historical facts in many cases. We often will see a well documented historical fact that a certain air force base expanded onto reserve land. The surveyors staked it out and took 200 acres 50 years ago. No one ever resolved these outstanding claims. People have been forced to go to the courts. Surely in cases like that an independent claims body would agree that the grievance is legitimate and should succeed.
For example, the Fort McKay case in 1996 resulted in the reversal of the Government of Canada's policy position with respect to treaty land entitlement, and the prairie land surrenders of the Oliver era are very well known. These are landmark cases, precedent setting cases.
The NDP welcomes the independent claims body with the reservations I have stated, which we will be raising again at committee.