Mr. Speaker, precisely, and the point here is to show that these very weak and whimsical kinds of amendments that have come back from the Senate entirely miss the point. Very good work has been done over a number of years, building rapport and building recommendations so we get a good bill before us. Bill C-6, even with what the Senate brought to us, does not take that into account.
I am trying to show and adduce here some of these things from the joint task report. If they were taken into account in terms of the amendments from the Senate, we would have something with which we could live. The first nations have indicated that. Members around the House have as well. I cannot understand or see why members on the government side have not.
The point is that a considerable amount of work has been done. These things should be taken into account and the Senate amendments should be adjusted. They should be taken into account as the work is being done. It is important to note that the underlying assumption in all the lead up work to Bill C-6, and to even get us to this phase of the JTF, was that the goal of the exercise was to find, and this is the crucial thing, a mutually acceptable means by which to settle claims. That was the whole point of the exercise.
Can we say, with a straight face in all honesty today, that Bill C-6, coming back with the weak amendments from the Senate, is a mutually acceptable means by which to settle claims? I think not. It is just so far removed from the case. In fact there was a modicum agreement coming out of the JTF. These were the minimal basic kinds of standards that would be taken, even at this late hour, by the government. If it would hear what is being said adjust the report, then we could get on and get the business done so we could have a body which would be a mutually acceptable means by which to settle claims.
There has been a growing backlog of claims for many years, outstanding legal obligations that present a liability to this government and to any government that comes in later; the new Conservative Party government that will take office in the future. We need to deal with it in a fair and reasonable fashion. That is the whole point of it.
The legislative proposal, the mandate that committee had, is conveyed here. It is a very technical table of some very technical work, which is being done, to come to agreement on a detailed proposal and a model for a more credible claims process. That is why we are doing this whole thing. That is why we had a JTF. The last way of doing it and the present way has not worked. It has not been a credible claims process. The Senate should listen to the recommendation. At this late hour, to get something of a decent body and to get this approved in the House before we rise, the government should take into account some of those minimal standards of the JTF report.
Those recommendations are articulated in the draft in the form of drafting instructions. They represent the joint product of people on both sides, extensive efforts by leaders and by officials on both sides. Notwithstanding that, every effort was made to meet the needs and concerns of both parties. These proposals, as said by the JTF, articulate the best technical means by which to resolve these claims. I stand by that. I think we would find a spirit, a willingness in the House to move forward if we went back to the very considerable work that was done.
I need to stress the main themes and elements of the JTF proposal. It has been often said in the Senate in recent days, on Bill C-6, that what we have is basically JTF. It could not be further from the truth. It is definitely not the case. Only by members around the House today understanding what JTF is about can they themselves make a judgment and say that our own senators, Liberal senators, were not exactly telling us the whole story. It is not representing JTF. It is something else they have come up with and it is a bit of a deception to say that it is JTF when that is not the case.
The government should accept and incorporate the main elements of the joint task force report the into the bill, were it to find it possible at a late hour.
The main elements are comprised of that commission to facilitate negotiations and tribunal as well to resolve disputes. The proposed commission is meant to ensure a more level playing field for negotiations by providing for independence. That is key.
I have something that I want to share. It is a very substantial piece of work that has been done by an author on this very issue entitled, “Towards an Independent Land Claims Tribunal: Bill C-6 in Context”. Mr. Milroy, in his writing on this, has very astutely and aptly exposes how this is not independent. How will we ever get some resolution to this unless we have some perception of that?
The proposed commission is meant to ensure this level playing field by providing for independent facilitation, at least that is what was recommended by the JTF. However, it is not at all what we find in Bill C-6 here. The JFT states:
It can draw upon an entire range of alternative dispute resolution techniques and mechanisms to assist the parties in reaching final settlements that will be satisfactory to both sides. These tools range from mere facilitation of meetings to various forms of mediation. If the parties agree, they can even resort to arbitration to resolve a claim or any issues within it that may prevent progress in negotiations. The Commission need intervene only to the extent required by the parties in their efforts to reach a resolution.
The proposed Tribunal, on the other hand, would be a last resort. It would be a quasi-judicial body available to make a final binding determination on the validity of claims, on discreet legal issues that prevent progress in negotiations or on compensation to be awarded claimants in lieu of damages to first nations communities.
“The Tribunal”, at least as perceived by the JTF and which in fact should be the case here in Bill C-6, “is an essential element in the proposed process where independence ultimately resides with that body, thereby eliminating any conflict of interest on the part of the Crown”. It goes on to state, “Its presence is intended to provide incentive for the parties to conduct negotiations in good faith and to reach timely settlements”. There are no timeframes or time structures in Bill C-6. It goes on:
The key difference from the current process, the process that we have had and have been going with up until now, is that incentive for timely and efficient settlements to be reached is greatly increased, if we follow the joint task force report of 1998.
“It should be noted that despite the wish of many first nations, outstanding lawful obligations and grievances related to aboriginal title and rights are specifically excluded from this proposed process”. Again, it is not about some of those other outstanding kinds of things. This is about specific claims where in many cases it has been established that they are bona fide claims where somebody has absconded with aboriginal or first nation resources, sold their land and pocketed the money to the detriment of that first nation.
The federal government in fact insisted on this exclusion, so at the end of the day the parties at the table agreed to that. The federal government did not agree that the issue could be revisited upon the five year review as was recommended. It wanted to keep those other things out and just make this specific claims. So be it. That is where we are with regard to some of the very good recommendations in the JTF report.
The reports states:
It was agreed that a separate review of the federal comprehensive claims policy would be included in the National Delgamuukw Review process now being initiated.
The JTF recommendations have maintained the long-standing principle that negotiations are the preferred means by which to resolve outstanding legal obligations. We continue to agree that the courts are far too costly, adversarial and inaccessible to realistically resolve the hundreds of specific claims that have been brought forward by first nations.
It is clear that the costs of not settling these claims will continue to grow the longer they are not addressed.
That is so profoundly true. It goes on to say:
More importantly, the social and economic benefits of settling these claims makes it an important means by which Canada can assist first nations in healing broken communities and building a productive future.
The big advantage here is that settling outstanding claims is not another spending program, it is paying off old debts. These are recognized obligations that Canada owes First Nations. The benefits that will be derived from bringing closure to these outstanding matters far outweigh the costs. This initiative is a key step in building a new relationship by correcting past wrongs. It represents one important step in building mutual respect that first nations in Canada can undertake immediately.
Some of the key features, as we got into that JTF process, of the proposed model, included the removal of Canada's perceived conflict of interest through the creation of a truly independent mechanism which would report directly to Parliament and the first nations.
Another key feature was the establishment of a commission to facilitate and ensure good faith negotiations by providing appropriate mechanisms for alternate dispute resolution.
The third key feature was the establishment of a tribunal that would be available to claimants to resolve legal disputes when negotiations fail.
Fourth was that the tribunal could make binding decisions on the validity of grievances, compensation criteria and award compensation subject to reaching an agreement on a fiscal framework.
Fifth, another key feature, was a contemporary definition of what types of issues could be brought forward which were consistent with case law evolving jurisprudence that included all legal obligations arising from the fiduciary relationship and the honour of the crown.
As well, another theme would be the flexibility to accommodate regional diversity and complement existing or future regional mechanisms.
Another theme would be the capacity to offer innovative means of resolving outstanding grievances. That is lacking. That is not in Bill C-6. Also, getting a legislative base for the new settlement process to ensure adequate authority, impartiality and secure financing.
Another key would be that of independent funding for first nations research, submission and negotiation.
The last one would be a joint review after the first five year period which would assess the effectiveness of the process and consider matters that could not be addressed at this time, for example, the inclusion of lawful obligations arising from site specific aboriginal rights.
The joint task force moved through its report and came to the end of some fairly decent and reasonable recommendations. These were not found in Bill C-6 before the bill went to the Senate, and are still not found there after the Senate recommendations. They are not found anywhere. However, there were several items, and in a process of this sort special challenge come to the surface. Admittedly, in the joint task force report a conscious a effort has to be made to maintain the task force interest base approach to the discussions.
These types of issues brought out some more of the adversarial aspects of the relationship. They required some fairly sensitive discussion.
Such issues had undermined previous efforts of joint policy development. This group resolved it would not fall into that old pattern of positional bargaining. Those more difficult issues and how they were dealt with might be informative to other joint efforts in the future, and I think I would agree.
On aboriginal rights, early on in the process it had to face the fact that the federal government and first nations held very different conceptions about how land grievances should be addressed. First nations wanted to hold to the original Liberal red book commitment, that an independent commission to deal with all claims would be established. The federal government insisted that aboriginal title and comprehensive claims had to be dealt with separately. The issue of site specific aboriginal rights was raised.
The first nations across our country pointed out that many first nations could suffer damage due to an infringement on such rights. However, they did not have access to comprehensive claims negotiations.
In the view of first nations such issues are no less lawful obligations than any other specific claim.
Federal officials were concerned about opening the door to aboriginal title matters. They insisted that the government would never consider dealing with aboriginal title within the same process, primarily due to the compilations presented by issues related to the jurisdiction of provinces.
Many of the first nations were not prepared to support the JTF process unless their concerns about a review of comprehensive claims policies were addressed. That particular issue was only resolved at a meeting with the chiefs' committee on claims on December 11, 1997, late in the year prior to when the JTF report came out.
The minister made an explicit commitment to a second process to review federal comprehensive claims policy. That proved rather timely as the Supreme Court of Canada's Delgamuukw decision came out later the same day in fact.
In the very end, this issue has been flagged for inclusion in the five year review of the new process recommended by the joint task force. It is important to note that the proposed process would allow for issues related to aboriginal titles to be addressed in the independent process with the consent of the minister. That is the recommendation. It is a very reasonable one.
There was a fiscal framework for all of this. When one looks at specific land claims, I think anyone would have to acknowledge that fact. Reaching agreement on recommendations for a fiscal framework proved to be one of the biggest challenges for the joint task force. It had to agree that certain key principles should guide the discussion on a fiscal framework. The backlog of claims and the transaction costs for processing them should be reduced. All claims should be resolved within a reasonable timeframe.
When we look at the Senate recommendations and when we look at the bill as it went from committee to the Senate, that was a problem. We acknowledged that in committee. Recommendations and amendments came forward in the committee but of course they were voted down by the government members, for whatever reasons we are not quite sure.
However there were no timeframes. If this is going to work, there have to be timeframes. That is simply why I have emphasized time and again throughout my speech that it is such a crucial part of a proper process.
There is one recommendation which needs to be heeded by the government and which should have been heeded by the Senate and could possibly still be adjusted with respect to that. It is the recommendation in terms of a fiscal framework comprised of a budgetary allocation for a settlement of funds over the initial five year period which has been referred to as a five year compensation amount or FYCA.
If during the five year period when the amount paid in settlements by negotiated agreements or tribunal rulings reaches a certain predetermined point, it will trigger a pause in the caseload until the next budgetary allocation is determined. That makes sense.
That would be the way of doing it even with those that are going to be over the “cap”. We think the cap is way too low. We have indicated that. It could be put into the next budget year and a pause put on some of those other examinations of cases until such time as the payouts happen.
Once this point was reached, the commission would not issue certificates for first nations to go to the tribunal. That would prevent the new system from imposing liabilities that exceed the budgetary allocation. This should satisfy the federal requirement for a manageable fiscal framework while meeting the first nations need that no claims be excluded from the new independent process.
Although there are federal concerns that one or more large claims could expend the budgetary allocation early on in the five year period, the joint task force concludes that the FYCA proposal is the best means by which to meet the minimum requirements of both parties.
While the federal side has presented the problem at the task force table and has indicated a wish to explore options which might exclude larger claims from the tribunal process, first nations representatives were not comfortable discussing any exclusion of lawful obligations claims. Such a compromise would require political direction and might very well undermine the broad first nations consensus maintained to that point.
While the JTF was not in a position to resolve how the financing would ultimately be addressed, agreement was reached on what data and approach would provide the most realistic cost projections for future settlements. It gave a very specific outline of that in an appendix which was rather helpful for the government and for the Senate to take into account.
The main variables to be used in making cost projections have been clearly identified. They were discussed and all that foot work was done. For example, 60 claims come in each year and 60% of those have been accepted for negotiation. That would provide the base data for determining a whole range of options on financing.
It is important for us to know too in terms of when other bodies get involved, other less partisan bodies some might say, the kind of process they go through to come up with a report. I think it is instructive and enlightening for us. There are drafting instructions which the task force provided to the government which represented the product of intensive efforts by leaders and officials from both sides. It was not one sided.
A great deal of technical assessment and legal analysis had to be undertaken when the joint task force began developing proposals for an independent claims body sometime ago. The proposals themselves are the product of many years of work by many different people all of whom have recognized the need for some fundamental reform.
The joint task force did a lot of work reviewing and debating a wide range of options in arriving at the recommendations. Its suggested model was thought to be the best course in terms of eliminating the crown's conflict of interest in dealing with claims against itself. The joint task force proposal aims to achieve fairness, efficiency and effectiveness in the process for settling specific claims. All participants agreed that these were reasonable expectations in view of the serious shortcomings of the current process.
There were many legal, political and financial implications brought to bear on the task force's lengthy discussions. Many hours were put into the discussions. The task force devised what it believed to be an innovative and workable solution which was ignored by the government and the Senate again. The task force thought it was innovative and workable. Hours of no end were put into the challenge of jointly establishing recommendations for a fiscal framework.
The joint task force relied heavily upon the many years of experience of the participants, the wealth of past analytical material, as well as the expertise of the various consultants and experts who were brought into the process at different points.
The process was unique. It is rather different from what goes on in the House of Commons. It demanded representatives from both sides to act in a mutually supportive fashion to achieve results. There was not a lot of previous experience in such joint efforts to draw upon. The participants discovered that it required a great deal of mutual support and understanding to make it move forward. Each party had to come to grips with the constraints under which the other operated, especially at difficult points in the discussions when it seemed that different viewpoints were almost insurmountable.
From the outset the participants determined that the discussions had to be guided by an interest based approach, what was in it for one party and what was in it for the other based on interest, which was non-positional and required some wide-ranging consultation.
The development of mutually acceptable guiding principles helped both sides reach agreement relatively quickly on the scale of things on what the main elements of the recommendations should be. In this way the task force was able to take up one element at a time and work its way through the required details.
The task force hoped that its respective principals, the Government of Canada and first nations, would come to an agreement on proposals that could be mutually sanctioned and implemented within an agreed timeframe. Alas, it appears that will not be the case. It will be some time before we get some resolve on this. Regrettably it is not coming to pass anytime soon.
After the report was written, both the minister and the chief expressed the desire to have the new body in place by April 1999. The calendar in front of the Mace indicates that it is now November 3, 2003. There will be quite a few more sittings of the House before any headway will be made on the issue. Those individuals were obviously far more optimistic than they should have been.
The minister committed to the first nations that the required legislation would be jointly developed, thereby providing the task force with some sense of urgency in its efforts to complete the package. The goal was to have the legislation ready for introduction to Parliament early in the current session and here it is almost five years later.
Part of the urgency in moving the legislation forward quickly was due to the growing backlog of claims. Back in 1998 there were approximately 400 claims. We can well imagine what the backlog is now. The backlog contributes to the frustration and sense of grievance that have characterized relations between Canada and the first nations for so many years.
The need to clear up the uncertainty and to remove the impediments caused by those outstanding claims is now more apparent than ever, as first nations and Canadians pursue a wider range of economic opportunities and business partnerships.
Developments in the law have helped to clarify the legal basis of these claims and also the federal responsibilities in this regard. This makes it even more imperative that we eliminate the appearance of conflict in how Canada deals with first nations grievances against the government.
It had been expected that, pending agreement on the recommendations, those proposals would go to cabinet very quickly thereafter. That was postponed and delayed and other things stood in the way. Finally, we stand here on November 3 not anywhere closer at this point it is regrettable to say. Some of the delay was in order to address the federal requirement for a fiscal framework as set out in the Liberal government's red book.
Based on the desire to move forward on the required reforms without delay, the task force prepared a model of what the basic elements for legislation might look like and presented that in its report. If the drafting instructions of the joint task force had been approved by cabinet, the task force could have moved forward with the development of an actual bill very quickly. Instead the government took a detour. It went in a rather different direction from the recommendations in the 1998 joint task force report.
The task force was directed to work on a fiscal framework. It sought to satisfy the federal need for financial predictability. This was very time consuming and many hours were put into doing that. It was found that building a fiscal framework had fundamental implications for key aspects of the proposed model under discussion. It also brought about a further re-evaluation of such fundamental questions as to what comprised independence, how much it would cost and the issues surrounding fiscal control.
Those are good questions to be asking. Whenever we embark on a bill around this place those are the necessary questions. Sometimes we are concerned that the government does not get into that, that it does not look through it carefully and does not do the projections nor does it extrapolate the costs. It makes a lot of sense that this should be done in respect of this. The task force went through a lot of that work trying to get the figures down to be able to make the proper predictions.
It is believed that the five year compensation amount recommended by the task force addresses the concerns raised by the government of the day. It required a significant compromise on the part of first nations representatives who had a clear mandate to avoid putting financial caps on the settlement of claims. It was with great difficulty that the task force managed to reach agreement on a fiscal framework that would not prejudice or exclude claims.
The task force firmly believes that its proposal will provide the best means by which to settle claims. It is important to begin addressing these outstanding matters in a very significant way as the cost for first nations and the costs for the nation of Canada, can only rise when there is further delay. There are costs for not settling these matters not only fiscally, which is important of course, but socially as well. There are other kinds of fallout as well, which we do not want to have to get into today because it is a rather sad and sorry state. The cost of settling these matters must be done in a clear and timely fashion.
The task force's proposals were felt to provide the kind of basis for moving forward. Again, they were ignored by the government and by and large they were ignored in the Senate amendments as well. The task force suggested that the first nations and Canada begin to consider the types of mutually acceptable individuals who should fill those key positions in the new body.
Now we sit around waiting, and we will be waiting for a while to come, as the government has no particular willingness to make some significant adjustments to the bill. It was thought it would be timely to consider a joint advisory body to assist the new claims commission and tribunal in setting itself up. We are a way from doing that as things unfortunately stand.
The task force believed it engaged in an exercise that could serve as a landmark and a model for a new partnership between first nations and Canada. It addressed it in a very creative, cooperative spirit. There was a whole range of technical, legal and financial challenges it had to address and it did in a reasonable manner. It is not perfect and nobody is saying that, but the task force produced a very detailed, innovative and for the most part very practical proposal.
The task force was ready and willing to provide any further technical assistance. If it were called up today I am sure it could provide advice and wisdom, having sat that many hours for that particular joint task force. Task force members hoped and I hoped that its work would in some sense contribute to the enactment of legislation in this place and to other measures that would ensure a new process to resolve claims to the satisfaction of all parties concerned.
I think that is important when we look at what the government produced and what the Senate then, in a fairly weak and wimpy way, came forward with: something of the final draft of the legislative drafting instructions for an independent claims body, the instructions for preparing the legislation, the product of the joint first nations and Canada task force. The task force completed its work in a series of monthly meetings beginning in February 1997 and concluding in the latter part of 1998.
The following are some of the suggestions the task force had. The bill was going to be called the first nations specific claims resolution act. I think the instructive item in the title was that it was actually going resolve something. It was going to resolve these specific claims.
There were definitions, as there are always are. There were definitions with respect to AFN and with respect to the bands. A band was defined as:
(a) a band as defined in subsection 2(1) of the Indian Act;
(b) a group of Indians that was recognized as a band under the laws of Canada, or whose ancestors were so recognized, and whose members are members of a band referred to in paragraph (a) or (c); or
(c) a group of persons that was a band as defined in subsection 2(1) of the Indian Act that was a signatory to a comprehensive claims settlement agreement entered into with the Government of Canada or to any other agreement specified by the regulations.
Establishing a commission by subsection 5(1) of the act was also addressed.
With respect to competing claims, it was defined as follows:
“competing claim” means a claim that is brought by a band before an adjudicative body otherwise than under this Act if there was another claim filed under section 10 and the two claims are in respect of the same asset and raise substantive or remedial issues that could result in irreconcilable decisions.
We would not want to be at odds if it is already under consideration in some other context. That had to be sorted out and clearly and properly defined.
The purpose of the proposed act was to provide for the establishment of:
an independent and expert Commission to help First Nations and the Crown settle, or resolve by binding arbitration, certain claims and to establish an independent and expert Tribunal to expeditiously and finally determine issues referred to it that arose from such claims.
With respect to non-derogation, it stated:
The bill will provide that, for greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the application of section 35 of the Constitution Act, 1982.
Then in general there were proposed sections 5 to 9, which are what the bill should look like. This is more closely what it should approximate. These were specific drafting instructions for the government of the day which for some reason this government decided to ignore. Why do we put people to work on these expensive and time consuming task forces and then ignore them and set aside their report?
The bill was to include:
provisions for the establishment of the First Nations Specific Claims Commission and for general administrative matters regarding the Commission.
It stated:
The Commission shall consist of a Chief Commissioner, a Vice-Chief Commissioner and between three and five other members to be appointed by the Governor in Council.
It recommended that:
Persons are eligible to be appointed only if they are recommended by the AFN and the Minister.
Thus we see that a joint recommendation was suggested.
In regard to regional representation, it stated:
Appointments shall be made having regard to regional representation in the membership of the Commission.
That was to get some balance around the country.
In regard to full time and part time, it stated:
The Chief Commissioner and Vice-Chief Commissioner shall be full-time members and other members may be appointed as full-time or part-time members of the Commission.
In regard to the terms of their appointments, it stated:
Each member of the Commission shall be appointed for a term of not more than five years and may be removed by the Governor in Council only for cause on the recommendation of the AFN and the Minister.
As things stand now, where we have only three year terms, if the government does not like how the commission is doing things it could well remove members.
I sat on a health board for the city of Saskatoon and the Saskatoon area, the largest health board in that province, where at one point in time the NDP government of the day decided it needed something of a buffer, so there were appointments of members to these health boards while other members were elected. I was one of those elected members. Six were appointed.
I need to make members aware that when individuals are appointed, as was the case there, they are going to be somewhat careful not to buck the trend and not to go against the government if in fact they are dependent on the government for their reappointment.
In this case, we have three year terms. With that kind of scenario, if these individuals are looking for reappointment because they need the salary, the job and they want to carry on, it is only for three years. If they do not kowtow to and rule as the government wants them to, members can imagine that they are not going to be reappointed. That is problematic.
Therefore it was a very wise recommendation coming out of the joint task force report that:
Each full-time member of the Commission shall be paid the salary fixed by the Governor in Council and each part-time member shall be paid the fees or other remuneration for that member's services that are fixed by the Governor in Council.
Then we move on from there in terms of a number of other things.
Mr. Speaker, you are signalling me that my time has concluded. I have much more to say on this subject. I look forward to that in days ahead. I understand that I have indefinite time, so am I to understand that I will commence again when Bill C-6 comes back to the House as I yield the floor now? I will cede the floor, but I will be back on the docket to relay much more wisdom and many more insights, not from myself but from the joint task force report.