Mr. Speaker, I know they will be watching from the TV monitors out in the lobby as they are eating their lunch and hearing the very important things that are being said this hour in response to the report from the Senate with regard to Bill C-6.
When I left off on Friday in terms of this rather important bill under consideration, I was saying that I do not dispute the point that making the centre independent not to mention giving it the appearance of independence is no small challenge. It is a challenge. As I said last week, it is clear to me that the government is not up to the challenge.
Proposals to help give the centre independence and the important appearance of independence are staring the government in the face from the pages of the joint task force report, to which I will refer later. There are large blocks of that document that are very helpful. There is another document by Leigh Ogston Milroy which talks about the need for independence with this particular body.
A number of amendments were put forward in committee by the Canadian Alliance and there were some from other parties as well. There were a significant number of amendments from our party, yet those were completely ignored and swept aside.
Another Senate amendment is a transitional provision to ensure that those who are claimants under the current specific claims policy are also entitled to make representations regarding appointments to the new claims centre.
Another Senate amendment will allow first nations to make representations as part of the government's three to five year review process mandated in the bill. This will affect clause 76 of the bill. Unamended, Bill C-6 does not obligate the government to seek anyone else's input into the review process or to document their thoughts.
Even with the Senate amendment, nothing forces the government to make public and be accountable for concerns that the many first nations have with the claims resolution process. How does the government expect to win over the confidence and the trust of first nations when it ignores them in such an obvious manner? How does the government expect to convince people that the claims resolution centre is independent when it is keeping such tight control over every aspect of the process?
Indian chiefs from across the country as well as the Assembly of First Nations have made their position very clear, that the appointment process mandated by Bill C-6 undermines any claim that the centre will be independent and impartial. If they use it at all, the first nations will not accept rulings against their claims because they lack confidence in the impartiality of the centre.
The government has set up a process that will not resolve anything in terms of producing closure or finality to a claim.
The parliamentary secretary told us in committee that the minister would consult first nations. Having said that, he was unable to explain why the minister is unwilling to put that promise in the bill. The review process sends the message that the government is only interested in the effectiveness of the centre from its own perspective, rather than understanding its impact on all parties concerned.
I believe that is a major flaw and a major problem in the bill. If the bill is not looked at in terms of the other parties involved, in terms of getting the proper resolution, saving us all kinds of tax dollars if we have to use the more expensive and extensive process of going through the courts, this is not taking into account those considerations.
The concerns about trust and lack of independence of the proposed claims centre have been raised numerous times in the Senate as well. I frankly confess that I am surprised that the Senate report to the House did not include any stronger amendments to rectify the situation.
For example, Progressive Conservative Senator Terry Stratton noted at one point:
Under the present system Canada is already the judge and jury. Bill C-6 retains this concept and adds elements to this conflict.
The federal government retains sole authority over appointments to the commission and tribunal and retains authority over possessing the claims, which undermines any concept of independence. Appointments are made on recommendation of the minister, the same minister responsible for defending these claims. Obviously, this system is ripe for political patronage considering that the commission appointees have no qualification requirements.
Liberal Senator Gill told his colleagues:
I have trouble seeing how this tribunal or the appointed commissioners or judges would be independent. I have a lot of trouble seeing that independence.
At one point Senator Nick Sibbeston, speaking in defence of the bill, argued:
There is no other system. No other approach is possible in our system of governance, where the government appoints people to tribunals and boards. We have to live with that system and trust that the appointees are not in a conflict of interest situation. We must trust that they can make judgments based on their best ability without regard for who appointed them.
Senator Sibbeston and others speaking on behalf of the government on this issue are arguing that we are dealing with an either/or situation, making no room for a middle ground.
Elsewhere in Senate debate, Senator Jack Austin, also speaking in defence of the bill, objected that the Assembly of First Nations and other aboriginal groups were demanding veto powers over government appointments. The Assembly of First Nations has indicated that it can live with the recommendations that are in public view for all to see in the joint task force report.
As I indicated in my speech last week, although it gives aboriginal groups much more input into the appointment process than they would have under Bill C-6, it would still give the government the final decision making power. First nations can be given far greater opportunity for input into the review process as well without giving them veto powers over the final release of the government's report.
Mr. Speaker, as you well know from your many years in this place, there is a mechanism in Parliament whereby in the case of committees, opposition parties can release dissenting reports. No doubt, Mr. Speaker, you were in on that process when you sat on the opposition side.
Opposition reports, or dissenting reports, are not uncommon in this place. Those dissenting reports are given when individuals do not agree with a committee's final report. Those opposition reports are tabled and made public. They have official status but they do not stop or obstruct the government's legislative agenda from moving forward.
I do not understand why there is such a lack of creativity on the government side when it comes to the specific claim centre that it cannot come up with something comparable to that such as dissenting reports or whatever one wants to call them in the three to five year review process mandated in the legislation.
Senator Sibbeston raised an interesting point in the comment which I quoted a few minutes ago. He talked about trust and about how important it was. We are supposed to “trust that the appointees are not in a conflict of interest situation”. He said that we must trust that appointees can make judgments based on their very best ability without regard for who appointed them.
The hon. senator talked about trust in the context of the industry minister's interesting relationship with industry giant Irving Oil. We would not want to forget the special perks that other ministers have received from Irving. When we are told to trust the government, we should not forget about the Minister of Human Resources Development and her admission regarding Irving perks. That minister is already famous for the HRDC boondoggle that was exposed under her watch. Trust indeed. There is also the involvement of the environment minister and who knows who else will admit to an unethical relationship with Irving later on today, tomorrow or sometime during the remainder of the week.
When we think about trust and the current government, we might also keep in mind the flagrant abuse of taxpayer dollars through the billion dollar boondoggle gun registry. There has been no end to the ink used to write on that exposé of scandalous waste of taxpayer dollars and then we use the word trust.
That scandal in respect to the gun registry has been brought to us by the current industry minister. Everything he touches seems to turn to scandal and boondoggle it would appear, at least in terms of the number of portfolios he has had.
There are the current health minister, the justice minister and now the solicitor general, and there are all of these different problems in respect to the kinds of perceived conflicts and scandals they have been involved in.
Speaking of the justice minister, this is an individual who is presently sacrificing our parliamentary democracy on the altar of judicial activism and so we had hearings all across the country. We listened to good, qualified, competent people who presented considered, reasoned opinions to the committee and at the end of the day when it was just about to release its report, it was pretty much shut down. Other individuals were brought in to stack the committee. It did not matter that the members did all this good work over some considerable period of time in attempting to get an understanding of the crucial issue of marriage in the country.
As well, there is no question from the vast majority of witnesses that the way in which the government is going in terms of homosexual marriage is not the direction the committee wants. In fact, it would have been along a different line, possibly civil or domestic partnerships or something like that but certainly the retention of heterosexual traditional marriage was the way the committee obviously would have gone.
At the end of the day the government threw that out or did not even appeal to the Supreme Court of Canada. A pretty good body of opinion is asking why it did not do that. It is because it knew in fact it would have been upheld; the traditional heterosexual time honoured definition of marriage in the country would have been upheld.
The Minister of Justice at that point did not trust at all what the committee did. He was not to be trusted because he really sabotaged and hi-jacked the whole process to his own end, to his own purpose and to his own agenda. Instead of taking it to appeal which would have upheld the traditional heterosexual time honoured definition of marriage, the whole thing was sabotaged.
The justice minister was trying to get in the way and obstruct others who were going to come forward in lieu of the government on that particular issue, defending in our country what has long been held to be the proper definition of marriage. It is as constitutionally valid today as ever.
I say that simply because there is the issue of trust. Can we trust? Ought we to trust? Ought we to be so naive as to trust when we have things like that going on in our country? I would say it would obviously be very naive.
Getting back directly to Bill C-6, that is why when Senator Sibbeston talks of trust, either he is thinking that we are a little bit naive and fairly stupid in this whole thing or he believes it himself and that is not even a strong statement in respect to his own credentials for his role.
Trust in the current government is probably at an all time low because of a number of these things. We cannot simply trust the government.
How would it go over, Mr. Speaker, if you showed up at a place in your riding, or if any of us did for that matter, and walked in saying, “Trust me, I am from the government”. I think it gives a little sense of it if you, I, or any member here did it.
I am slightly shielded at this point because I can say, “Trust me, I am from the official opposition party, the Canadian Alliance”. But if I were to walk in and say “Trust me, I am from the government,” I can imagine what kind of a response that would get from constituents. “Trust me, I am from the government” is not an assurance that goes very far today, not with the government engaged in permanent damage control due to unethical behaviour and gross incompetence.
Canadians want to make their government accountable by seeing their promises stipulated in legislation. They do not want a verbal statement that the government is going to do such and such; they want it in legislation. Let us defend it, make sure it is entrenched there and then they will be more likely to believe it. Verbal assurances are not good enough, certainly not when there is the kind of legacy that the Liberal government has.
What is so difficult about putting some bottom line, minimum standards in place in terms of the credentials required by a claims centre employee to mitigate against the risk of patronage and conflict of interest? That could be done, it should be done and it is necessary for it to be done. Such a move would increase the confidence of Canadians, including the aboriginal claimants involved in these claim disputes.
At the same time, to bring my comments back specifically to the three to five year process, let us give first nations a better mechanism to have their voices heard, especially if they do not agree with the government's report.
The Senate has made another amendment that seems designed to address concerns over conflict of interest. It may be of some benefit in that respect, although that remains to be seen. We are not quite sure. The amendment in the words of the Senate Standing Committee on Aboriginal Peoples chair, the hon. Thelma Chalifoux “seeks to protect the impartiality of the commission by limiting employment with claimants for certain appointees following the completion of their term”. It also imposes a temporary employment restriction with the Department of Indians Affairs and Northern Development for prior appointees.
The government should make further amendments to deal with the independence and the impartiality of the claim centre before sending the bill back to the Senate for final approval, instead of simply accepting the Senate report as written.
Bill C-6 states that the majority of the adjudicators, including either the chief adjudicator or the vice-chief adjudicator, must be members in good standing of the bar of a province or la Chambre des notaires du Québec. As I mentioned a few minutes ago, the bill says nothing about the professional qualifications of those eligible for appointments to the claims commission. In a saner time one might be able to trust the government to make competent appointments, but the scandalous revelation of out of control bureaucrats that have been surfacing in recent months lead to some real concerns about the need for greater clarity as to the credentials of potential appointees to the claim centre.
It might also be worth examining the length of the terms that the appointees hold with the centre. First nations have expressed concern that the appointment periods for the chief and the vice-chief commissioners and adjudicators are only five years and for the regular commissioners and adjudicators the period is three years, with the possibility of reappointment available in all these cases. First nations, and rightfully so, fear that these short periods of service will tempt the officials to rule in favour of the government that appointed them so as to ensure they are reappointed. That concern was also raised during Bill C-6 debate in the other place, in the Senate. If the appointee sits for such a short term and has the option of being reappointed, will his or her interest in being reappointed affect his or her commitment to impartiality when hearing the claims?
The final amendment proposed by the Senate adds to the tribunal's authority by amending section 47. Section 47 deals with some of the responsibilities of the tribunal. The Senate amendment adds to the tribunal's responsibilities. If this amendment passes, the tribunal will be able “in relation to a specific claim that is before the commission to summon witnesses or to order production of documents”.
In other words, if one of the parties is not forthcoming with information deemed important by the commissioners to resolving the particular case at hand, the commission can request the intervention of the tribunal for the purpose of requiring witnesses to appear before the commission and to require the production of documents that would help in evaluating the claim. That on the surface seems like a reasonable amendment. I might be able to support that if we were to get that far, but I am not so inclined to think we will at this point.
Although not reflected in the amendments from the Senate, the question of transparency with the specific claims resolution centre was a significant topic of debate in the Senate. I found it very interesting to note and to understand what was said there on this matter. It was the subject of some observations which the Senate added to the end of its report to this House.
That is another area of the bill that needs to be dealt with to build confidence and trust in the government by our first nations aboriginal people across the country.
What we are talking about regarding transparency are provisions to make the process effective and efficient. I think everybody concerned in this process would like that. We want a process that is expeditious, not one that is full of delay, obstruction and stonewalling. Sadly, we see the very opposite in Bill C-6. In the legislation there are far too many opportunities available to the government to stall and to delay the process of considering a claim.
As individuals well noted, it has been said numerous times in speeches delivered here and elsewhere, that justice delayed is really justice denied. There is no question about it. If we hold off people indefinitely and obstruct, stonewall and delay, then justice delayed is simply justice denied. That is a sad statement.
The comments from the Senate are remarkably similar to the concerns that we raised in the House and in the aboriginal affairs committee earlier this year. Let me read the Senate comments into the record today. I quote:
One of the primary goals of this Bill is to provide for more speedy resolution of claims. Nonetheless, there are many areas of potential delay built into the process. Most notably, there is no requirement on the Minister to make a decision on whether to accept a claim for negotiation within a set time period. We have been told that this flexibility is necessary because of the complexity of many claims and the limited legal and other resources available to the Minister to make these determinations. As well, the government may be limited in the number of claims it can address because of the budget available for settlements. We would therefore urge the government to allocate significant additional resources to the process of validity determination, negotiation and settlement of claims so that the admirable goals of the Bill can be met.
We would ask that the Minister, in the review of the Act in three to five years, pay particular attention to the impact of the issues of delay and resources that have been allocated to the process of validity determination.
We, of course, believe the government should make the necessary amendments to the bill immediately and not put it off. As I noted earlier, the government has protected itself fiscally by establishing a budgetary limit to the funds it can distribute each year to settle claims. Then to go on to say that it needs to build on such protections at other points in the bill is really nonsense.
There is nothing stopping the government from resolving claims in any given year that total an amount greater than that which has been set aside in the budget to allocate to such claims. In such a situation the resolution process could include a provision to add an appropriate amount to the claim payout to take into account the fact that it cannot be allocated until the next fiscal year or whatever subsequent date on which the payment would be made. Therefore, if the total is used up within a year, that is fine, then there is an agreement, a written legal binding part of the text, that says it will be paid out of another year's or maybe the total amount could be increased altogether. However, I would say that it is fairly uncreative. I can attribute other things to it as well, but do not say that it cannot meet these bigger claims because it does have the total allocation, when it could be paid out in the subsequent years. I am sure that would be acceptable to that band rather than setting it aside altogether.
I am sure that the simple fact of resolving a claim would be a step forward for peace of mind and security for many native people, even if the payout for that claim had to be delayed by a year or two based on prior knowledge of budget constraints. To leave first nations claimants in a state of insecurity and flux over the final outcome of their claims simply because the money is not available to pay it out in any given year is quite frankly an indefensible position.
I want to take some time now to remind the House of the numerous specific areas in the bill in which the government has built in opportunities to delay and obstruct the claims resolution process.
The minister, for example, if he decides not to negotiate the claim is nowhere obligated to explain his reasons for that decision. If the claimant decides to challenge the minister's decision, the minister has to provide disclosure in his defence at a later date before the claims tribunal or the court. The claimant on the other hand is required to provide a full accounting of his position and rationale for it at the outset of the process.
One would expect that in a context that is supposed to be conciliatory and guided by alternative dispute resolution mechanisms rather than the more adversarial environment of the courts, that Bill C-6 would make clear the responsibility of both parties for full disclosure at the earlier point in the process.
The government has also built many mechanisms into the bill to enable delay and obstruction in the process of considering a claim. It has avoided the establishment of tangible timelines contrary to recommendations in the 1998 joint task force report, which we want to make some reference to later, to ensure a speedy resolution of claims.
That 1998 joint task force report had some very good, notable and worthy recommendations. The government has also rejected joint task force report proposals that would have given the claimant or the commission the ability to move the process forward if the government seemed to be taking excessive time to consider a claim.
The first example of what we might call a stalling clause is the provision for multiple, preparatory meetings. It is probably fair to call it a stalling clause because that is the net effect of what results here. Following the initial preparatory meeting, the commission is authorized to hold additional such meetings at the request of either party. The minister can conceivably use this provision to delay the process.
Indian representatives who spoke with us said that one preparatory meeting was generally enough and therefore the option for additional meetings was not likely to be a provision found useful by first nations. Concern was raised that it existed more for the benefit of the government for use as a stalling mechanism. People were pretty wise to that from all sides of the table. I think the government was also aware of that, but would obviously not want to concede that or publicly fess up to that.
The bill does not require the commission to hold additional meetings at the request of either party, and one could imagine the government using this point in its defence to try to defend the indefensible here. However, without protections in the bill to ensure that the commissioners are competent and free from conflicts of interest, this really means very little. As we have said before, we need those specific protections in the bill along the lines of the competence of commissioners free from conflict of interest and so on. We need those in writing. It is not good just to have verbal assurances of same. A handshake, unfortunately, is not adequate for the job in this case.
Later in the process where the bill discusses the minister's need to consider the merits of the claimant's case and to make a decision as to whether he will negotiate the claim, the bill gives him six months to report back with a decision. Clause 30 of the bill also states that the minister can come back to the commission in six months and instead of reporting his decision, he can say that he needs more time.
This might seem like a reasonable provision on the surface, if it simply extended the government's deliberation for another 6 to 12 months. When we look at it more closely, we find out that timelines and final deadlines are completely absent. They are nowhere in there, not in respect to a 6 to 12 month deadline. Therefore, the government could theoretically ask indefinitely for additional six month extensions carrying on to eternity, I assume. Obviously, that is a real problem.
Earlier in committee, the Canadian Alliance attempted to amend this section with a one year limit on the process, but the government rejected that amendment as it did with pretty much all of our amendments. Hansard records indicate that this aspect of the process was a topic of some debate and concern in the Senate, but unfortunately that concern was not translated into an amendment in the Senate's report to this House.
The amendment that we in the Canadian Alliance proposed would have required the minister to apply to the commission for more time rather than to simply declare that he needed more time. That is how it stands now: that he simply needs more time. Rather, what I think was our very reasonable amendment stated that the minister had to apply for more time, thereby essentially giving the commission the right to deny the government's request, enabling it to say no, it has had time enough. As it stands now, the minister simply says he needs more time and that is it. There is no verdict that can be rendered back to him to say that he cannot have more time.
The amendment we put forth and the proposal we made also would have required the commission to hear from the claimant before making a decision. Then it could render a decision on whether that period of time was required.
Bill C-6 does not even require the government to provide its reasons for insisting on an extension to its reporting deadline. Can hon. members imagine that? The government can say it needs an extension without any indication of how much time it needs and without having to give any reason why. I find that extremely absurd and nefarious at worst.
We are dealing with a government that despises accountability and transparency. Subclause 30(3) states that the government may provide the reason that it needs more time “if applicable”. The way this clause is phrased, it treats the practice of not providing reasons as normative. That is not uncommon, as we hear that across the way in question period as well. Not giving reasons is the norm. The exception would be that in some really remote and strange case one might be compelled to provide some sort of reason. That is the way the clause is phrased. It treats the practice of not providing reasons as normative, saying that the minister need only produce reasons if it is deemed “applicable” to do so.
I do not know what situations would make it not applicable for the minister to provide reasons for delaying the process and leaving the parties hanging there. One of my amendments in committee would have deleted the words “if applicable” and just knocked that out of there, but again, the government members voted that down. Apparently this secrecy provision, which is almost what I would call it, is important, even though the minister does not tell us why.
It is this lack of transparency in the bill that raises serious questions about how effective it really will be in clearing up the terrible backlog that exists today in respect of specific claims. The government even added a fourth section to clause 30 to protect itself against penalties for stalling the process. Subclause 30(4) states:
No passage of time in relation to the decision on whether to negotiate a claim may be considered as constituting a decision not to negotiate the claim.
This section reinforces the fact that the bill makes no provision for the claimant to circumvent this part in the process. The commission may not treat the lack of a decision from the government as a decision one way or the other, so it would remain in limbo until the minister decides to announce his decision.
It would be worthwhile at this time to consider for some moments part of the legal analysis of Bill C-6 produced by the Assembly of First Nations as it pertains to the particular issues of accountability and transparency in the claims process proposed in this legislation. Here I will quote:
Under Bill C-6, the federal government unilaterally controls the pace at which claims are considered. Bill C-6 permits the Minister to 'consider' a claim indefinitely at an early stage in the process. There are no time limits that must be obeyed. No independent body can ever say 'enough is enough, the claim goes to the next stage'. A claim might have to go through an elaborate series of distinct stages and steps before compensation is ever paid. This could include:--
Here the Assembly of First Nations lists distinct stages and steps before compensation is paid:
--a funding application;
--initial preparatory meetings;
--further delays while the Minister considers an amendment that the claimant makes to its initial claim;
--an application and hearing to convince the commission that mediation has been exhausted;--
I am getting a bit exhausted just reading through this whole thing.
The steps continue:
--a hearing in front of the Tribunal to determine compensation;
--mediation to deal with compensation;
--an application and hearing to determine whether mediation has been exhausted;
--proceedings in front of the Tribunal;
--a five year delay while the award is paid out;
--judicial review of the award.
I can rhyme all that off in just a few short minutes here, but each one of that number of steps and stages takes considerable and lengthy time in and of itself. They are distinct stages or steps that would be required to be undertaken.
The Assembly of First Nations continued:
Many of these steps could have been eliminated or combined. With others, the delays could have been controlled by giving an independent body control over the pace by setting a strict time frame in the statute itself. The Joint Task Force Model Bill was built for making major headway on the backlog. Bill C-6 is almost certain to ensure that the backlog grows.
That was the thing. Even with all of those steps that we listed there, there was no strict timeframe in respect to any of them, so members can imagine that it would go on for an awfully long time. It is just a fact of life that if some timelines and timeframes are not set, then things go on indefinitely. In all courts of law, in all those processes, there is something to address that, yet we do not have anything here at all.
In a footnote to these comments, the AFN noted that:
Under the [Joint Task Force] report, the minister did not have the discretion to consider a claim indefinitely.
I think that was a very good thing about the joint task force report, one among many things. In that joint task force report, the minister did not have the discretion to consider a claim indefinitely. The AFN went on to say:
Once a claim was lodged, the Commission and Tribunal, not the federal government, had the primary say over the pace of proceedings. A First Nation was not required to attend more than one preparatory meeting, or to prove to a third party that mediation or other “alternate dispute resolution” was exhausted... When a claim reached the tribunal, both validity and compensation could be dealt with together.
As I have examined this particular bill and the claims process in general, including the entire history leading up to the place at which we find ourselves today in the House, these observations made by the AFN generally strike me as quite reasonable.
Another problem with clause 32 is the obstructionist language used in terms of the requirements the claimant has to fulfill before the commission is permitted to send a claim to the tribunal. A claim can go to the tribunal if the government refuses to negotiate it following discussions facilitated by the commission with the help of alternate dispute resolution mechanisms. If the claimant still wants to pursue his claim, he can ask the commission to refer it to the tribunal for a binding decision.
The problem here is the excessive threshold of proof that the bill imposes on the claimant before the claim can go before the tribunal.
Subclause 32(1)(a) states:
the basis for the claim and all matters of fact and law on which the claimant relies in support of the claim have been fully and clearly identified and adequately researched and have been considered by the Minister;--
Subclause 32(1)(b) states:
all dispute resolution processes appropriate for resolving the issue have been exhausted without the issue having been resolved;--
These sections essentially require the claimant to prove to the claims commission that he has done absolutely everything that he could possibly do within that alternate dispute resolution process before the commission can send the claim to the tribunal to consider its validity.
The absolutist language in this clause imposes an excessive if not impossible threshold on the claimant to reach before he will be permitted to pursue a hearing before the tribunal. If pro-government patronage appointees are sitting on the commission, they could help the government to use this provision as yet another stalling tactic. If the claimant does not have every single t crossed and every i dotted, this step in the process can be another place to delay justice for aboriginal people and, as we have said before, justice delayed is justice denied.
Also as we have said before, first nations have pointed out that they do support the use of alternative dispute resolution mechanisms, and that if the alternative dispute resolution process is working for a particular claim, it is in their interest to make it work. First nations therefore say they do not understand why the government is using this big stick approach to ensuring the use of alternative dispute resolution mechanisms--unless it is another mechanism to be used as a stalling tactic, of course, which would explain why the government would be of a mind to use it--and that it is a matter of trying to force the claimant to continue to sit down with the federal government even long after any reasonable person would have observed that nothing further could be gained by additional negotiations.
One comment we received from first nations on this issue is as follows:
Alternate dispute settlement mechanisms, such as mediation, only work if both parties are committed to making it work. The best judge of that is the parties themselves.
The very best individuals to know that, the best persons to know that, are those who are sitting at the table, those parties themselves. The comment continued:
A claimant should not have to “prove” to the commission, in another potentially expensive and dilatory proceeding, that alternative dispute resolution is “exhausted”.
Now they have to prove that it is not working, with the burden of proof being on them. The comment continued:
The current provision allows the federal government to further stall and frustrate the process by dragging its feet with respect to its participation in the alternate dispute resolution process.
I want to move to discussion of the compensation phase of the process. Assuming that the tribunal has made a binding decision that the claim is valid, that it is a bona fide claim, then both parties have to go back to the commission to try to negotiate the appropriate compensation for the claim. That is dealt with in clause 35 of Bill C-6. Subclauses 35(1)(a) and 35(1)(b) of this clause duplicate those in clause 32.
Subclause 35(1) essentially requires the claimant to prove to the claims commission that he has done absolutely everything that he could possibly do within the alternative dispute resolution process before the commission can send that claim to the tribunal to consider its validity. As I said before about absolutist language, in this clause it imposes an excessive if not impossible threshold on the claimant to reach before he will be permitted to pursue a hearing before the tribunal. If pro-government patronage appointees--I said it before and I will say it again--are sitting on that commission, they could help the government by using this provision as another stalling tactic.
First nations have pointed out that they have supported the use of alternative dispute resolution mechanisms and they would be willing to use that process. I think they are the ones best, willing and able to decide whether it is working, and the government across the other side as well, rather than forcing that individual or those claimants to sit down with the federal government even long after reasonable people would have observed that nothing further could be gained by additional negotiations.
Some first nations have said that if alternative dispute resolution mechanisms do not work by the end of one year, there should be a provision for the claimant to request that the claim be transferred to the tribunal. One representation we received states in part:
After one year of attempting to negotiate a resolution, the claimant should be free to proceed to the tribunal. It should not have to go through further hoops, involving additional delay and expense, to show that it tried to exhaust other means of settlement. It is unnecessary and unfair to require the claimant to exhaustively state its case, including all of its evidence and legal arguments, prior to the tribunal hearing. No one is required to do so in any comparable litigation or arbitration context.
The representation goes on to say:
The Minister should not be able to delay resolution by dragging a First Nation through a slow or endless series of 'negotiations'. Any First Nation that can achieve a reasonable settlement by negotiation will do so. Why would it risk losing at the tribunal?
These certainly seem to me to be reasonable observations. I think other people, as they examine, scrutinize and carefully look over the bill, would draw the same conclusion.
I am not saying that no criteria should be stipulated as a basic standard that has to be met by the claimant before the commission can transfer the claim to the tribunal. Perhaps there are ways in which the claimant could unfairly take advantage of a situation in which no criteria are required. But at the very least, the criteria should be modified with changes to the absolutist language that currently exists in the bill.
As I consider the lack of independence and transparency in the claim centre proposed in Bill C-6, I continue to be astonished at the government's claim that this is an improvement over the current situation. Even in the Senate, the hon. Jack Austin, speaking on behalf of the government, stated numerous times that:
The centre will create a more independent, impartial and transparent system.
He also claimed that:
Bill C-6 is the result of a substantial joint Canada-First Nations task force process.
Does the government believe that if it says the same thing over and over again--in the Senate or anywhere in the country--that no matter how absurd it is, people will eventually believe it? It clearly has not taken into account, in a substantive manner, the recommendations of the joint task force report of 1998.
It does not matter what Senator Austin or others have said. They can say it until they are blue in the face, but it does not make it so. It can simply be looked at and it is not on too many pages in that report. We eventually realize how far it falls short of those recommendations there.
Thankfully, aside from the government senators, Progressive Conservative and some Liberal senators were willing to challenge Senator Austin's claims on the independence of the Bill C-6 process, as well as his insistence that it was fairly representative of the joint task force report of 1998.
We also had Canadian Alliance Senator Gerry St. Germain make representations to say that what was in Bill C-6 was not independent as reported back to the House from the Senate. For the record, the hon. Terry Stratton, a Progressive Conservative senator observed that:
The [Indian Affairs] minister, in his presentation to the committee, referred to the joint task force report. He stated that there were two areas where they did not agree with the joint task force report and, therefore, did not follow the recommendations of the task force report. However, the aboriginal presentations stated to us quite clearly that far more than just two references to the JTF were ignored. As a result, because there were so many problems with the bill, not just two, they maintained that the bill should be rejected. There was a conflict between what the minister had stated and what the aboriginals had been stated with respect to the JTF.
Senator St. Germain stated, for example, that:
The government has built mechanisms into this bill that will delay and obstruct the process of considering claims. It has avoided the establishment of tangible timelines to ensure a speedy resolution of claims. This is contrary to the recommendations in the 1998 joint task force report.
Senator St. Germain also noted:
Bill C-6 would permit the minister to consider a claim at the early stages of the process indefinitely.
This reinforces exactly what we have said, what we as members of the committee have said, and what I, as a member of the Canadian Alliance, have said. The process can be carried on indefinitely. He went on to state:
There are no time limits that must be obeyed. No independent body can ever say, “Enough is enough, the claim goes to the next stage.” The claim might have to go through an elaborate series of distinct stages and steps before compensation is ever paid. Many of these steps could have been eliminated or combined with others. The delays could have been controlled by giving an independent body control over the pace or by setting a strict timeframe in the statute itself. The joint task force model bill was built for making major headway on the backlog. Bill C-6 is almost certain to ensure that the backlog grows.
Senator St. Germain then pointed out:
The AFN also noted that under the 1998 joint task force report, the minister did not have the discretion to consider a claim indefinitely. Once a claim was logged, the commission and tribunal, not the federal government, had the primary say over the pace of the proceedings. A first nation was not required to attend more than one preparatory meeting or to prove to a third party that mediation or other “alternative dispute resolution” was exhausted. When a claim reached the tribunal, both validity and compensation could be dealt with together.
As we can see from these comments, the concerns over the integrity of the government regarding the joint task force meetings is in question, at least in the eyes of first nations peoples. Why would the government go through that process, all the countless hours, in supposedly good faith, to get something of a meritorious document of that sort, and then ignore it?
Unfortunately, that happens with too many reports around this place. We go through the effort and then the report sits on a shelf collecting dust. It is not followed-through for one reason or another. That is why people question the integrity of the government regarding the whole lengthy process of the joint task force meetings. That is why first nations people, who participated in that process in good faith, question the whole process, particularly the government's intent and whether or not there was any good faith.
If the government decided that it could not stomach the recommendations of the joint task force report, then it should have the courage to say so, rather than pretending that Bill C-6 is a natural step in the process, that it is an evolution from the joint task force report of 1998, when clearly it is not.
The government should be bold enough to tell us there are problems. It should acknowledge where it sees problems so we can have some debate on this rather than the subterfuge that everything is fine and in Bill C-6, when that is obviously not the case.
I want to turn my attention to another example in Bill C-6 of the government's hostility to the principles of accountability and transparency.
Clause 77 of the bill gives the governor in council the authority to make regulations. Mr. Speaker, you have been in this place long enough to know that the Canadian Alliance, and perhaps members from every party in the House, are rather uncomfortable with the idea of the governor in council, in other words the government or the cabinet, making and changing laws behind closed doors, doing it by way of regulations beyond the scrutiny of Parliament and the Canadian public.
That is not to deny that sometimes that is necessary, particularly the fine points, the detail and so on, but obviously, it must adhere to the principles in the bill, not with regulations being made thereafter and going off in a different direction. That seems to violate the very letter and spirit of any bill if changes are done by way of regulations.
The reform party, before it became the Canadian Alliance, and members of other parties, have made it clear that they have considerable concern and unease about some of these things being made by regulation and, therefore, no scrutiny by Parliament. It is sometimes an easy matter to insert a clause here or a phrase there where it is not going to add thousands of pages, and then it does not have to be done in the regulations. It is plain for all to see in the bill itself.
This whole matter of too frequently relying on regulations to change laws, and often violating what would seem the spirit and letter of the bill, is a dangerous practice. It undermines Parliament by ignoring, and even ostracizing and diminishing the role of parliamentarians in this place, members of all parties who work good and hard making good legislation for people concerned. We need processes in place with respect to any bills that come before us that encourage and ensure democratic accountability.
Specifically in Bill C-6, the governor in council has the authority to add to part 2 of the schedule the name of any agreement related to aboriginal self-government, and to prescribe anything that may, under this act, be prescribed. We have a lot of “any” and “anything” there and that seems to open it up pretty wide.
Let us look at the second part of this provision, “the authority to prescribe anything that may, under this act, be prescribed”. Two places where the government will have the authority to make rules for the claims process outside the supervision of Parliament after the bill has passed are in subclause 32(1)(c) and subclause 35(1)(d).
Subclause 32(1)(c) is one of the conditions that claimants must meet before the commission is permitted to refer their specific claim to the tribunal for the purpose of determining its validity. It reads:
(c) the claimant has, in prescribed form, waived any compensation for the claim that is in excess of the claim limit as it applies to the claim in accordance with section 56.
It is, therefore, the condition that requires claimants to agree not to pursue an amount greater than the value of the cap--moving up to $10 million by way of a Senate report amendment--to settle the claim before they are permitted to have the tribunal consider the claim to determine whether or not it is valid.
For years now, the Canadian Alliance has been objecting to the government's practice of passing incomplete legislation, what we might call fill in the blank legislation, bills that need to be fleshed out by the government after the bill has been passed, fleshed out somewhere other than in Parliament, where there are less eyes watching and where they are protected from much of the accountability process that is provided by the House.
I do not think that is an appropriate way to handle the issues in the bill. There are enough problems with this section already, as I have mentioned, without making the implications of the bill for first nations and taxpayers less clear by keeping those important details of the law out of the bill until after it has passed.
The same must be said for subclause 35(1)( d ), the waiver clause for the compensation phase of the claims negotiation process. We are not going to know all the rules that govern the cap until the governor in council finishes prescribing them behind closed doors, somewhere at a time and a place when they will not be subject to the scrutiny and the accountability of Parliament. This is simply undemocratic and it is another example of the current government's hostility to the principles of accountability and transparency.
I have discussed some of the most troubling aspects of Bill C-6 even in its amended form. What I have listed here is by no means an exhaustive list of the flaws that permeate the legislation.
When the bill fails, it will fuel the feeling of injustice and unrest among first nations across the country. It will put Canadian taxpayers on the hook for the cost of setting up and running the centre with minimal or no return on the investment.
Taxpayers will have to continue to pay the government's legal bills in addition to this claims body. They will have to pay those legal bills for the expensive court cases that will be launched in place of the mediated hearings that would take place in an effective claims commission and tribunal.
The first nations will continue their uphill battle to have legitimate claims recognized over incidents of injustice and maltreatment at the hands of the federal government and its agents in violation of historic treaty agreements.
Bill C-6, for a host of reasons, does not deserve the dignity of being passed by Parliament. It should be withdrawn by the government and then redrafted before being brought back to the House for consideration.
I have referred a number of times to the joint task force report that was put together with considerable work by individuals back in 1998. It has considerable bearing in terms of what the new independent claims body should look like. Therefore, I am going to be making comments regarding the joint task force report on the specific claims policy reform. This was submitted by the Assembly of First Nations and the specific claims branch of DIAND. I am reading from a reformatted version of November 25, 1998.
The report's table of contents gives us a way out of the morass, the delay and the lack of resolution we have had in respect to specific land claims. I will make reference to the many covering letters which go into some of the background on how we arrived at this point and why we need such a body. Some of the main themes are outlined, such as the JTF proposals, and some of the key features. It then gets into a discussion of some of the general issues: aboriginal rights, fiscal framework, the joint task force process and then the current status. And, of course, as with any of these reports, there are a number of appendices, charts and graphs.
I first will read a letter to the chiefs from Rolland Pangowish, the co-chair of the joint task force report. It is dated November 25, 1998. He says:
On behalf of the First Nations Task Force representatives, I would like to take this opportunity to present to you the Report of the Joint First Nations/Canada Task Force on the Reform of Claims Policy. This report reflects the painstaking and highly detailed efforts of the past one and a half years of cooperative efforts between the AFN Chiefs Committee on Claims, First Nations technical advisors and government officials from the Departments of Indian Affairs and Northern Development and Justice.
In introducing the JTF Report, I would like to offer my personal assessment that this exercise in partnership has succeeded by achieving agreement on what participants feel is the best technical approach for resolving claims. The recommendations set out in the proposal are based on the assumption that the goal is to resolve claims.
I think that is pretty basic and it is good they came to that understanding. He goes on to say:
It should be kept in mind that both sides had to give and take in this process in order to reach agreement on these recommendations. While there are certain aspects of the proposed process that each side would have liked to take a different approach, the proposal represents a minimum standard that each side thought their respective principals could live with.
Overall, in my estimation, this joint policy development initiative should be highlighted as a positive and productive venture in terms of its future role as a workable and highly useful means for addressing the many issues currently confronting the First Nations and the Crown.
It must be said, however, that many legal, political and financial questions were raised at the table for discussion. While the input from the Department of Justice was most helpful, the First Nation participants believe that any future refinement of these proposals should involve senior financial specialists from central agencies directly in the discussions. Had these key officials been active participants in our joint dialogue, they might have provided necessary expertise and assistance for us to achieve more timely solutions in key problem areas.
The Joint Task Force has now provided a highly detailed and focused blueprint for fulfilling the long-standing need for an independent claims body. The implementation of these proposals would represent an important step in addressing an important aspect of the RCAP Report. Although the Task Force could not address all the matters contemplated in the RCAP Report with respect to an independent claims body, we have attempted to design a process whereby the perception of conflict of interest would be eliminated.
The primary phase of the task that was mandated for the AFN by the Chiefs-in-Assembly has now been completed. The First Nations Joint Task Force technical representatives, under the guidance of the Chiefs Committee on Claims, has sought to ensure that this proposal is entirely faithful to the principles that have been set out for it by the First Nations political leadership.
In the next few weeks, we will be presenting this proposal to the Chiefs Committee on Claims and to the Chiefs at the Confederacy
On behalf of the Joint Task Force, we look forward to the opportunity for continuing to meet the challenge of ensuring that this proposal will one day form the framework for resolving conflicts between the First Nations and Canada. It is our anticipation that this proposal will provide a sound basis for a new, constructive and mutually productive relationship.
Co-chair, Joint Task Force Report
The letter was carbon copied off to the appropriate individuals: the AFN executive committee, chiefs committee on claims, the joint task force members, the Minister of Human Resources Development and so on.
At the outset of the joint task force report there was a very interesting letter that I would like to read. I think the listening audience and members in the House as well will find it interesting. The letter was written by Dan Kohoko, the director of special projects, specific claims branch. He wrote it on Indian and Northern Affairs Canada letterhead and sent it to Mr. John Sinclair, the ADM policy and strategic direction, Indian and Northern Affairs Canada, and then off to Mr. Scott Serson, the deputy minister, Indian and Northern Affairs Canada. The letter reads:
The Joint Task Force, which Mr. Rolland Pangowish, Director, AFN Land Rights United, and myself, Director, Special Projects, SCB, chaired over the past two years, recently completed its work on what I would consider to be Phase I of our towards establishing an independent claims body.
For the record, we would like to table a report on the Joint Task Force (JTF) work, to which we have appended the actual product produced by the JTF in phase one; as well as a copy of both English and French versions of the legislative drafting instructions. The JTF work on the drafting instructions was basically completed when we met with AFN in October 1998. It was indicated at that time that a staged approach was preferred by the federal government.
As requested we held a meeting in Quebec City to discuss what a model that could be considered a staged approach might look like. The work to adjust the current drafting instructions to reflect such a model is what I consider to be the next phase of potential work for the JTF. However, before proceeding the JTF should receive direction from both First Nations and the federal government with regard to Phase II.
The letter was signed by Dan Kohoko, director, special project, specific claims branch.
We find again that the letter was forwarded off to the appropriate people: Warren Johnson, A/ADM, claims and Indian government, DIAND; Paul Cuillerier, DG, specific claims branch, DIAND; Dennis Wallace, associate deputy minister, DIAND: Daniel Charboneau, minister's assistant, DIAND; and, Rolland Pangowish, director, lands right unit, AFN. I simply add all those individuals who received it so nobody can claim it was not without their knowledge. This is public record and it has been read by all.
What we have where we say it is the JTF report embodied in Bill C-6 is hard to comprehend when in fact it is so obviously different from it and it does not take into account some of the very good recommendations that we find in the 1998 joint task force report.
I want to give some background and content though as we come up to the need for a specific claims body of some kind or other and what brought this particular joint task force together. In the preface of the report itself it gives some of that background. It states:
The Joint First Nations-Canada Task Force on Claims Policy Reform has been charged with addressing an important part of the new partnership the Government of Canada has promised will characterize its efforts to build a new relationship with First Nations. If this new relationship is to be based on mutual trust and respect, we must begin to address those things which have created mistrust.
It is well put from my point of view. The report goes on to state:
Obviously, an important part of this healing process requires that we effectively resolve outstanding grievances and address the need for an adequate land and resource base.
For many years, First Nations and others have called for the establishment of an independent body to resolve outstanding claims. The need to eliminate the federal government's perceived conflict of interest in resolving claims against itself has now been widely acknowledged.
Lots of people have seen the light on that one. The report continues:
The mandate of this task force was to provide a forum where federal and First Nations officials could cooperatively develop recommendations for the reform of Canada's claim policies.
The commitment to this type of process followed up on the federal government's Red Book commitment to work with First Nations to design a new independent claims body. This commitment was consistent with the recent RCAP Report recommendations and many years of similar recommendations by First Nations and independent observers. This commitment was further affirmed in the subsequent “Gathering Strength” and agenda for action polices of the federal government, which convey Canada's commitment to building a new relationship with First Nations, based on trust and mutual respect.
The Task Force is a technical table composed of regional First Nations representatives and federal officials from Indian Affairs and Justice. It began its work in earnest in the Spring of 1997 and has reached agreement on detailed recommendations with respect to the major elements of a new process for addressing what have come to be referred to as specific claims. We have now identified the required structures, basic procedures and required legislative--