Mr. Speaker, I am pleased to speak to Bill C-30, which is a major step forward in terms of how the government will be handling specific claims. The New Democrats will be supporting the bill as amended.
There are a couple of things I want to cover in my speech. There were a number of very legitimate concerns raised in committee. One would hope that as this legislation unfolds and arrives at its review period any difficulties with this legislation will be addressed.
A number of members have talked about specific elements of the bill. I want to put a historical context around this piece of legislation.
The sad truth is that this legislation is far overdue. In the years from 1927 to 1951 the Indian Act actually prohibited bands from using their funds to make claims against the government. That was the start of a long sad and sorry history. It went on until 1947 when a special joint committee of the Senate and the House of Commons was struck to look at establishing a claims commission. There was the very controversial 1969 white paper which failed and was withdrawn. The Calder decision confirmed that aboriginal peoples had the historic occupation of the land and gave rise to legal rights on the land that survived European settlement. This information is from a Library of Parliament document. Then there were various iterations of a specific claims policy that either died on the order paper or failed in some other respect. We have a long-standing problem of not dealing in an honourable way with specific claims.
On the department's website is an overview of the specific claims action plan. It is stated fairly well. It said:
Specific claims deal with past grievances of First Nations. These grievances relate to Canada's obligations under historic treaties or the way it managed First Nation funds or other assets, including reserve land.
Since 1973, the Government of Canada has a policy and process in place to resolve these claims through negotiations rather than through the courts.
Those negotiations were often bogged down in literally years of back and forth, whether it was research, whether it was finally getting the government to the place where it would actually accept the claim, whether it ended up at the commission only to have the government disregard its recommendations. People spent many years in a frustrating process that did not actually see any outcomes.
During the committee hearings we heard from a number of first nations from coast to coast. A number of concerns were raised. Some of them included what they call the cap, the $150 million limit on claims, the tribunal appointment process and the lack of recognition of a nation to nation status. A number of nations raised this.
I might point out that when we a sign treaty with another country, we think of it as a nation to nation process but when it comes to signing treaties with first nations, that premise of a nation to nation status seems to go by the wayside. I will come back to address the consultation process in more detail and the fact that reserve creation is a problem that is not adequately dealt with in the specifics claims process.
One reason for supporting the bill is simply that the current system is so deeply broken and flawed that it is unworkable. The NDP will support the current bill because it sets time limits to see a faster and more expedited process, which should hopefully result in some justice for first nations.
I was talking about the historical context. There is an important number which members of the House and people watching would be interested in. There was a brief prepared for the committee by Alan Pratt, who is a barrister and solicitor. He went back to 1963 and said:
I will provide the Committee with a rather astonishing fact. In 1963, as you may know, the federal government of the day introduced a Bill which, like the present one, would have created a binding tribunal, to be called the Indian Claims Commission. The Committee will be aware that this Bill did not receive the force of law. Some 45 years later Parliament is still attempting to create the first binding tribunal in Canada, other than the courts, with jurisdiction to address specific land claims.
The astonishing fact to which I refer is not that a tribunal was proposed in 1963 nor that 45 years have passed without achieving the creation of a tribunal (although to many people both acts are startling in themselves), but that in 1963 the Department of Indian Affairs assessed the total cost of settling all outstanding claims in Canada (both comprehensive and specific) at $17,400,000. Most of this was estimated to settle aboriginal title claims in British Columbia, Yukon and Quebec.
Further on he said:
I refer to the 1963 estimate partly to make the point that the cost of settling claims does nothing over time but increase, and increase dramatically.
He mentioned some numbers on how much it would cost. Before taking account of inflation, this estimate was off by a factor of about 1,000, or in other words, 100,000%.
His point was that if governments in 1963 and further on had come to the table in good faith and looked at the honour of the Crown, its fiduciary responsibility, these claims could have been settled in a way that would have been fairer to first nations and to the Canadian people. Costs have now escalated and some estimate it is going to cost billions of dollars to settle these claims. The longer we delay, the more costly it becomes.
When we are talking about costs, we are not just talking about money. We are also talking about the cost to a people suffering from the decimation of their language and their culture, and the social problems facing many reserves. I would expect that the settlement of specific claims would help move forward and preserve language and culture. The sad part of the bill is that there is no recognition around how treaties have not honoured the protection of language, culture and other social aspects.
The matter of consultation has come up a number of times. Article 10 of the UN Declaration on the Rights of Indigenous Peoples states:
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
With respect to consultation, Bill C-30 is certainly a good step forward. It is a positive move in the right direction in that it was drafted in conjunction with the Assembly of First Nations. It is a good first step, but it certainly does not meet the broader test of consultation.
I heard the minister talk earlier about this being a voluntary process, so it is up to individuals to decide whether or not they want to engage in it. However, if people choose not to engage in a specific claims process, their other option is litigation. Litigation is costly, time consuming and has a huge impact on the ability of our first nations to manage their affairs. Once they are involved in the litigation process, they cannot be involved in any other aspect on that specific claim. The NDP suggested that perhaps a particular point of law or a particular aspect of a specific claim could be carved off and go to litigation while the rest of the claim proceeded. That was ruled as an unacceptable amendment.
Let me get back to consultation. The Auditor General and others have talked about the fact that many first nations and many court decisions have encouraged the government to develop an adequate consultation process. The current Conservative government and previous Liberal governments have failed to move forward on developing a consultation process that would meet the tests laid out in court cases.
The Assembly of First Nations could not discuss this legislation with other first nations prior to its being tabled in the House because of confidentiality, which makes perfect sense. Our hands were tied at committee with the number of amendments we could propose because we could not fundamentally change the intent of the bill. A number of amendments were proposed, but they were ruled out of order by the chair. Even if they had been ruled in order, they would have subsequently been ruled out of order on the floor of the House.
When we are talking about consultation, what we really need to do is look at how consultation happens coast to coast to coast. We need to look at how by the time we get a piece of legislation in the House of Commons, it actually reflects the views of people from coast to coast to coast. In this consultation process, the Assembly of First Nations certainly has member nations from coast to coast to coast, but other organizations were excluded, such as the Native Women's Association, the Assembly of First Nations from Quebec and Labrador and other representative groups. There was no mechanism to include them at the table in this consultative process.
What we have is a bill that perhaps does not reflect all of the needs. It is a good reminder to us that first nations are not a homogeneous group of people. First nations have different traditions, different cultures, different language groups, different social customs. It is important when legislation is being developed that some effort is made to reflect those differences from one coast to the other and to the north. Although this process was a good first step, I would urge the government to come to the table and work with representative first nations groups across this country to develop a truly representative consultative process.
One of the other issues that came up was around the transition. According to the department website as of December 31, 2007 a significant number of claims are already in the system. For example, claims under review, there are 607; claims under negotiation, there are 132; and there are also a number of claims that have been concluded or are active in litigation or in the current process. The total number of claims comes to 1,374. There are probably many other claims that are not represented in that number because they are not quite into the process.
One of the questions I raised continuously during the hearings in the committee was around the transitional process. A number of first nations presented briefs. It was not always testimony that came before the committee. Sometimes when a question was asked, people agreed there were some concerns around the transitional process.
In a brief submitted by the Snuneymuxw First Nation, which is in my riding of Nanaimo—Cowichan, it talked about fairness and said that it had submitted a very significant specific claim in February 1993 involving breaches of lawful obligation by the Government of Canada which led to the unlawful purported taking of a 79 acre reserve on Vancouver Island, in Nanaimo, British Columbia:
We have waited over 10 years before the claim was accepted for negotiation on November 26, 2003. There have been over four years of negotiations between the SFN [Snuneymuxw First Nation] and Canada since that time. No settlement has been reached, nor does an agreement seem likely in the near future. Several differences have emerged over the proper legal approach to quantifying damages. These differences have resulted in a wide gulf between the parties.
There is much more detail and I have limited time so I will not read the entire brief, but it went on to say:
We respectfully submit that it is unfair to require Aboriginal Nations who have already put in more than three years at the negotiation table to request permission from the Minister to access the Tribunal.
Again, there were some amendments proposed around this, but they fundamentally changed the scope of the bill and they were ruled out of order. In this particular case, and this is not unusual, there are first nations that have been in the process for years and years. There is a process where, if they do not submit any additional information, they can be fast tracked into a tribunal process but they still could end up with a number of other claimants that have either already been in the system or are new to the system. The argument that I was making around this issue is that for people who have actually got to the negotiation stage and have been negotiating for years, there should be some way to recognize the lengthy period of time they have already been waiting for some settlement of their claim. Unfortunately, that was not possible. As the process unfolds and people pay very close attention to it, and I expect the aboriginal affairs committee will continue to pay close attention to this bill, that adequate resources or perhaps some changes might be made to reflect any problems that arise in that process.
In addition, the member opposite mentioned the problems that were raised by the Okanagan Indian Band, whose claim has now been rejected, but there was another piece of it that I think is quite critical. There were two pieces. One is the cap over $150 million, but the other piece was around the reserve creation. The brief for the committee stated:
It is important to note that the unanimous Supreme Court of Canada in Wewaykum concluded that Canada owed First Nations in British Columbia fiduciary duty during the reserve creation process (which stretched over a period in excess of 60 years). Clearly breaches of fiduciary duty arising during the reserve creation process should form the basis of a valid Specific Claim.
The minister did issue a “comfort letter” around paragraph 14(1)(c), which said not to worry about it, that the question would be clarified and it was not a problem, but there is of course a concern in British Columbia in particular. Over half of the specific claims are from British Columbia, so this has a significant impact on the province that I live in, and part of the concern is that B.C.'s portion of the backlog will be reduced by the wholesale rejection of reserve creation specific claims.
In the case of Wewaykum, part of the problem is that although this decision has come down, there are some concerns around the legal interpretations so people still are unclear about the impact of this decision overall on the reserve creation process.
One of the things that also has been mentioned is mediation: that one of the intents of this piece of legislation is to reach negotiated settlements. Certainly what we heard about it is that mediation is an important aspect of this.
Again, the specific claims action plan from INAC's website talks about the fact that certainly mediation is part of what would be considered, and the current body has a mediation role, but in the future it is unclear what resources will be put in place for that. If mediation is going to be a viable alternative that could help expedite the process, we would expect adequate resources to be put in place. Again I want to refer to Alan Pratt's submission. He says:
The preamble to the Bill states that “resolving specific claims will promote reconciliation between First Nations and the Crown and the development and self-sufficiency of First Nations.” One cannot disagree with this objective. However, the Bill itself establishes a Tribunal whose mandate and procedure is described in almost purely litigious terms. The Tribunal itself is an adjudicative body and is not given any “reconciliation” function.
Elements of this legislation are outlined in the political accord, which has again been referred to, but there are elements of the intent of this legislation and the supporting accord that are left far too vague. If mediation is to be viable, adequate resources need to be put in place to ensure that all parties have access to mediation and that the government is actually willing to come to the table in mediation.
Of course what we have had in other cases in land claims agreements and treaties where mediation has been part of the clause that people could use is that the government has refused to come to the table. Of course I am talking about the previous Liberal government, and I am not sure about the current government's track record, but if mediation is going to be viable, there need to be resources, a focus and an intention, and a body needs to be set up that has the mandate to actually look at that.
I talked briefly about the political accord. It is an important parallel document. Again, as I raised in committee, what we have often seen is that as governments change, political accords get tossed. I am very disappointed that there was not some way to enshrine this.
In conclusion, I want to add that it is very important to ensure that elders are included in taking a look at the rules of how the tribunal will operate in providing advice and guidance. In many first nations communities, it is the elders who continue to provide advice and guidance to the chiefs and councils and the rest of the community. The elders need to be an important part of this function. As well, the government needs to commit adequate resources so that all of the timeframes can be met.