moved:
That, in the opinion of this House, the government should consider the advisability of establishing a new independent aboriginal land claims commission, as recommended in the 1994-95 annual report of the Indian Claims Commission.
Mr. Speaker, it gives me great pleasure to rise today to present to the House this motion, which seeks to bring action on the recommendation of the Indian Claims Commission.
The motion seeks the approval of the House to begin the discussion that will eventually lead to the establishment of a new Indian Claims Commission and process. I am also pleased this motion has been made votable, because this means the members of the House will now have the opportunity to formally respond to the incredible and excellent work the current Indian Claims Commission has been doing.
Before beginning my formal remarks today, I want to thank the Indian Claims Commission for all its efforts in meeting the challenges of its difficult mandate and for preparing the groundwork for the next step in this important and evolving process. I am particularly grateful to claims commission co-chair Mr. Dan Bellegarde and to Mary Ellen Turpel whose legal and research work I borrowed for some of my presentation today.
The idea of a new claims process and policy is not a new one. As I will demonstrate later in my remarks not only did former Prime Minister John Diefenbaker advocate for an independent land claims process, so too did the Liberals as recently as the 1993 election.
However, as is also obvious it appears the current Prime Minister and the Liberal cabinet have to be reminded of their famous red book commitments and be pushed into keeping them. Most of this became very clear to me this summer during the unrest throughout Canada and particularly because of the events which took place at Gustafsen Lake in British Columbia and at Ipperwash in Ontario.
As I listened to those news reports, watched the events unfold on my television screen, read the details in the newspapers and as I talked to concerned individuals across Canada it became clear to me these were not just isolated incidents. Each had a similar message and each was echoed by other events unfolding elsewhere in British Columbia, as well as in New Brunswick and other parts of Canada.
What I and other Canadians were seeing were the expressions of long withheld emotions centred around the meaning and importance of land and jurisdiction over land held by aboriginal people form coast to coast. These emotions fueled by frustration and anger led to occupations or roadblocks which led to the involvement of the police and the exclusion of the legitimate land claims process.
In late summer I called on the Minister of Indians Affairs and Northern Development to get involved not just in the specific disputes under the eye of the media but also in the general approach to land claims resolutions that will have the ability to resolve differences before tensions erupt.
I wrote to the minister and I even questioned him in the House about the possibility of beginning the process that would lead to the establishment of a new independent land claims policy and process.
I was disappointed when the minister responded by saying he had to wait because he needed more direction. The process to begin finding that direction can be begin today. It has been clearly outlined by the Indian claims commission in the 1994-95 report. With this motion I hope the House will tell the minister to get busy, to get at it.
The process, I remind the minister, cannot be dictated by the federal government. It must be worked out and jointly agreed on with the First Nations. Arthur Durocher, writing on land claims reform for the Indian claims commission, states:
There are many problems associated with the present land claims policies and processes. Claims are backlogged and there is a general dissatisfaction on the part of the First Nations. Changes have to be implemented as soon as possible because the longer the impasse drags on, the more difficult it will become to break. It is important that any changes that are done be done in consultation and in partnership with the First Nations. There has to be sufficient political will by the federal government to make any process viable.
In concurring with that statement, the support of the House on this motion will be very useful in securing action on this political will at this important time.
The Indian claims commission in the 1994-95 report came out in July of this year just as some of the land disputes were at their peak. I was surprised therefore when I heard very little comment from the government or the media about the Indian claims commission report itself.
If nothing else, the message from the commissioners at the beginning of the report should have alerted all of us to the importance of the matter in front of us. I will quote from that message:
The ICC is mandated to find better ways of handling land claims. To this end we have used our considerable experience to identify problem areas and recommend solutions that will assist in creating a more expedient, fair and equitable land claims policy and process.
Everything that we have learned as a commission to date indicates that it is imperative to commence the process of reform immediately. The return of native land is central to any real progress on the wide range of problems that face First Nations today. Meaningful self-government and true economic self-sufficiency are dependent upon an adequate land base. It is time for a fair and equitable process.
The commissioners recognized the need for immediate reform of the process. Now it is time for Parliament to do the same.
The frustration felt by aboriginal people throughout Canada has existed for a long time. I am reminded of the comments of former Assembly of First Nations Grand Chief Georges Erasmus, who was quoted in the introduction to a book on the subject, Drum Beat , published in 1989. Erasmus notes that for generations in Canada governments have treated aboriginal people as a disappearing race and that they have administered aboriginal policy accordingly:
Yet we have not disappeared; we have survived, as we have done since long before the appearance of the Europeans, against no matter what odds. Unfortunately, to the present day, governments have been unconscionably slow in coming to terms with the fact that we will always be here, and that our claims for justice, land, resources, and control over our own affairs will never go away, and they must be fairly and honourably dealt with.
There is now a widely accepted view that the current land claims process is not working well and that the pace and conditions for the resolution of land claims conflicts are inadequate.
As Mary Ellen Turpel tells us in her work for the claims commission, claims resolutions in the past 20 years have seen a massive increase in litigation over claims even though almost everyone involved in the claims recognizes litigation is not the best method for addressing land disputes.
The rise in court challenges is a byproduct of a failed dispute resolution process in the claims area and has served to reinforce an adversarial approach on the part of the crown and the First Nations in dealing with these disputes.
It appears, Turpel says, the First Nations and the federal government are headed toward further confrontation and hostility. The only remedy is a reworking of federal claims policies and the establishment of an appropriate and effective process for the
resolution of disputes between First Nations and government over lands and resources.
Turpel is writing in the claims commission's proceedings report, special issue No. 2, dealing with land claims, issued in 1994.
In that same report, the commission co-chairs Dan Bellegarde and James Prentice say very clearly:
Much discussion concerning the reform of the specific claims policy has taken place over recent years; little of fundamental importance has been accomplished. There is an urgent need for reform of the specific claims process to provide a fair and accountable land claims process for First Nations and indeed for all Canadians.
If we are to avoid further violence and bloodshed over unsettled land claims in Canada we must act now before the next confrontation.
That was written in September 1994, before the loss of life occurred at Ipperwash. Obviously action toward a resolution must begin, as the commissioners and others have been arguing, immediately.
It should be noted that the Indian Claims Commission was created in 1991 partly in response to the need for a fair land claims process, but it was acknowledged by everyone that the creation of the commission was an interim step only. The time has come, as it acknowledges, to go beyond the interim measure.
The commission is what has been referred to as a soft adjudicative tribunal in that the recommendations of the commission are not binding on the parties but rather are only advisory in nature. This means that at the completion of an inquiry the parties are not bound by the recommendations of the commission. In the end the federal government still must respond to the findings of the inquiry and the recommendations of the commission, and has only recently begun to do so.
In the case of a band within my constituency boundaries, the Canoe Lake Band, the response to its inquiry took the government more than 18 months to produce. The motion in front of us today suggests the government should take action on the recommendation of the claims commission's most recent report.
Before we run out of time in the debate today I will outline these recommendations. Recommendation No. 1 is the important one. It says that Canada and the First Nations should develop and implement a new claims policy and process that does not involve the present circumstances wherein Canada judges claims against itself.
The commission says the present system involves a fundamental flaw; Canada must judge claims against itself. This is a manifest conflict of interest especially when Canada stands in a fiduciary relationship toward the claimant First Nation.
It is imperative, the commission says, that an independent claims body be established to perform at least the initial assessment of the validity of First Nations land claims against Canada. Mary Ellen Turpel notes in her work: "A full appreciation of the federal government's fiduciary obligations, which represent a considerable and serious duty to act in the interests of the First Nations, has been the glaring omission in the claims process".
In the absence of a new policy, the claims commission brought forward five other recommendations which must be implemented in order to make the existing but temporary process more fair. The commission's second recommendation is to put fairness into the current policy.
The 1994-95 report says:
When First Nations submit specific claims to Canada they are encouraged to include for consideration the legal opinion of their lawyer along with their historical research. However, when Canada communicates its decision to accept or reject the claim, it relies on solicitor-client privilege and refuses to disclose its legal opinion from the Department of Justice.
The claims commission says that Canada has an obligation to provide that legal opinion.
To do less fails to meet the requirements of the fiduciary relationship, a relationship that has been found to exist by the Supreme Court of Canada in cases such as Sparrow. The substance of Canada's legal opinion must be exposed to full public scrutiny if justice is to be done and seen to be done.
The Canoe Lake report was not responded to until 18 months had passed. The commission notes in its third recommendation that situations like this are unacceptable. In calling for a response protocol, it says this type of response is fair to neither the claimant First Nation nor to the people of Canada.
Recommendation No. 4 deals with mediation and suggests that government council engaged on matters before the commission should be given the same broad mandate to consider, recommend and negotiate settlement it would have if acting for the government in litigation over the same claim.
The commission notes that from its inception the commission has vigorously sought to advance mediation as an alternative to the court and inquiries, both of which tend to be adversarial in nature.
Unfortunately, it says, one of the greatest obstacles in the settlement of specific claims is that the Department of Justice typically regards its own legal opinions as being determinant on the questions of whether an outstanding lawful obligation exists on the part of the government.
If the lawyer concludes that no such obligation exists, the government assumes there is no place for mediation. Since mediation is essentially consensual and both parties must request it, an opinion unfavourable to the claim ends the prospect for mediation before it can even begin.
The commission is aware that some claims might qualify for reconsideration based on factors outside the legal opinion, but there is no authority for counsel representing Indian affairs to do so without access to mediation measures as suggested by the commission.
The fifth recommendation deals with the need to identify and review all claims that were rejected based on the ban of pre-Confederation claims that was lifted in 1991. The commission wants the government to take the lead and begin the reviews and not leave the onus on the First Nations to ask for a review of the claims that were rejected prior to the alteration of the specific claims policy in 1991.
Most important, the sixth recommendation of the commission is that Canada stop insisting on the express extinguishment of aboriginal rights and title as part of the settlement of specific claims. The commission says this is grossly unfair since the claims policy is not meant to deal with aboriginal title and/or rights, and Canada ought not to insist on their extinguishment as part of the settlement of a specific claim.
This measure has been supported in the recent fact finding report written by Mr. Justice Hamilton, entitled "A New Partnership", in which he said:
Aboriginal people seek the recognition, not the surrender of their aboriginal rights. They are prepared to have the extent of their future rights to land and resources spelled out in a treaty. They are prepared to recognize the rights of others.
The Liberals have also agreed with this, at least the Liberal Party, ahead of the government. The red book says that "in order to be consistent with the Canadian Constitution, which now recognizes and affirms aboriginal and treaty rights, a Liberal government will not require blanket extinguishment for claims based on aboriginal title".
Prior to the general election in 1993, the leader of the Liberal Party, now the Prime Minister of Canada, said in Saskatoon: "A Liberal government, in consultation with aboriginal peoples, would undertake a major overhaul of the federal claims policy on a national basis".
In the red book, that now famous catalogue of Liberal promises, the Liberals acknowledged that if aboriginal communities are to become self-sufficient they must have an adequate land and resource base upon which to grow. That is why a Liberal government is committed to overhauling the land claims policy in ways that will make the process "more fair, more efficient, and less costly".
Two years after the election, it appears that we have to push the Liberals into meeting their own promises-not just the claims commission, not just aboriginal people from coast to coast, but the House of Commons as well. If the Liberals have failed to deliver on this promise and if we must push, then push we will, because this is one promise that is worth fulfilling.
I want the House to know that prior to putting this motion on the Order Paper and having it called for debate today I took the issue to my own party at its national convention in October of this year. I am pleased to say that support for a new claims commission had the unanimous support of delegates attending the national convention of New Democrats. They, like me, consider the issue to be of critical importance to our nation.
The Grand Chief of the Assembly of First Nations, Ovide Mercredi, played a crucial and important role during the land occupations this past summer. The grand chiefs and the chiefs of the AFN have been doing a fantastic job in preparing for a new land claims policy and process. I ask the Minister of Indian Affairs to ensure that the AFN is central to any decisions that are made in this regard.
I conclude my remarks today by again referring to the work of Mary Ellen Turpel, who says that consensus for an independent claims commission is evident but that concentrated effort and good will are needed to take the proposal for such a commission from the stage of political consensus to one of policy implementation in a legislative framework. It cannot be done unilaterally by government. Implementing these proposals will require a process whereby First Nations leaders and federal ministers come together over a short period of time to decide on an implementation strategy to draft the protocol and develop legislation and resolutions.
Because of lack of time I did not talk about the expiration of the mandate of the joint working group and the good work the joint working group completed. However, I must say that this is the type of process that needs to be reactivated with a broader mandate.
I will quote Mary Ellen Turpel one last time:
The agenda for land claims reforms is stalled at present. This is a tragic situation, given that so many options are available for immediate progress and all parties in the political process have identified a common set of problems and made a commitment to reform. If we continue to delay the process of land claims reform, we face further hostility as the prospects for an enduring peaceful relationship between First Nations and the crown grow dimmer.
Today, at the beginning of the debate on this votable motion, I thanked the chiefs for their patience and their unending commitment to their people. I thank the Indian Claims Commission for their excellent work in moving this critical issue forward. I urge all members of the House to support the motion so that the Minister of Indian Affairs and the government know that it has the support for change, which must be made sooner rather than later. I ask that I be given the opportunity to close this debate when that time comes.
