Maurice Vellacott

[Child Pornography, November 7th, 2003]

Mr. Speaker, in 1999 police began investigating a child pornography website in Texas that they then shut down and obtained its huge international subscriber list. Of more than 2,000 subscribers in Canada, only 10% have been investigated. In Germany, police have identified 530 suspects and seized 745 computers.

In Canada, movement has been shamefully slow. Is the failure of the Liberal government to effectively prosecute these child predators due to a lack of resources, a lack of strong legislation, or simply a lack of political will? Which is it?

[First Nations Fiscal and Statistical Management Act, November 6th, 2003]

Mr. Speaker, I want to reiterate right off the top that I could not agree more with my colleague who made a remark about how we could possibly make the case that the First Nations Statistical Institute should be part of Bill C-19, because it does not have a direct connect to other ones.

I do not know why we have omnibus bills, where we have things quite unrelated and not necessarily integral to one another. It diminishes this place some and is disrespectful. I wish we would have bills that we could consider individually and on their own merits as opposed to mixing apples and oranges and things that are somewhat unrelated. That is a problem.

Why we have the First Nations Statistical Institute as part of Bill C-19 is quite beyond me. It does not even reflect good management on the part of the department or on the part of the minister himself.

I will make my remarks around three different headings. Some of the motions under consideration are supportable.

My first point is the government needs to consult first nations communities in the making of appointments. We have come to accept that in respect to other pieces of legislation and bills, yet for some reason under Bill C-19 that appropriate kind of consultation would not take place.

Therefore, we have two good motions in respect to that. Motion No. 4 requires the minister to consult interested first nations prior to the appointment of a chairperson to the financial management board. In its present form the bill allows the minister to make a recommendation to the cabinet without any such consultation, and that is a mistake. It is disrespectful of first nations peoples, those who have so much at stake in the bill before us. That is a flaw and a misstep on the part of the government. Hopefully in future bills it will learn and rectify such a thing so the proper consultation takes place with the interested first nations persons, as suggested in Motion No. 4.

Another motion directs that when making other appointments to the board, the government should do the same thing: consult interested first nations before making recommendations to cabinet. Again, it makes my point around the general theme that the government needs to be consulting first nations communities in the making of their appointments.

Second, the government needs to make a point of building more transparency into the bill. As things presently stand concerning the board's making of rules of conduct for its meetings, nothing requires those rules to be published. We think that should be done.

Motion No. 7 would require these rules to be published in the First Nations Gazette . At present, no such publication is required. It should be there on the surface for all to see, a public document in the nature of the First Nations Gazette . It is a commendable amendment by the member. Therefore, Motion No. 7 is certainly supportable from the Canadian Alliance's point of view.

Motion 34 would require that the authority's annual report be tabled in the House of Commons. At present, the bill makes no such requirement. Again, we could have a little more transparency. I appeal to the parliamentary secretary and others who are listening. That makes simple sense and it could be enacted rather easily, and maybe even at this late hour. There could be some heeding in respect to Motion 34.

In addition to my first two points that the government needs to consult first nations communities in the making of appointments and needs to build more transparency into the bill by way of the having rules for conduct of meetings being published in the First Nations Gazette , a public document for all to see, an annual report should be tabled in the House of Commons. Presently, things do not read that way.

My third point is the government, from the Canadian Alliance perspective, needs to be clear on the rights and responsibilities of member first nations.

Motion No. 23 is also an important amendment. The bill in its present form would force a band to remain a member unless all other members agreed to allow its membership to cease. The amendment specifies that as long as the first nation has paid off its debt to the authority it can cease to be a member of its own volition and does not need the permission of the other members.

We debated that in committee and had some discussions around that. Why should one band have a veto power and hold another band hostage after it has paid off its debt to the authority? We have a problem with that.

We simply say that Motion No. 23 is supportable. If the first nation has paid off its debt to the authority, it should be able to cease to be a member of its own volition and not need the permission of other members. Why should one band have veto power to keep another band hostage, keep it bound, keep it constrained indefinitely and not allow it out of the particular institution?

Motion No. 24 reinforces the point that the government needs to be clearer on the rights and the responsibilities of member first nations. I would hope the minister and others who have listened attentively today would be supportive of Motion No. 24, which clarifies the obligations of the borrowing member first nation.

At present the bill states that the band must pay off its loan to the authority before making payments to any other creditors. The amendment would change this. It would require the band to first pay off creditors, other than the authorities, if those debts were incurred earlier than debts to the authority were incurred. That makes sense.

If a first nation has incurred a debt at some point earlier and then comes into the authority, why does that other debt repayment not have first call? Why would the first payment go to the authority and the others would get second dibs on whatever money would be owed to them?

Again, Motions Nos. 23 and 24 would allow the proper flexibility on the rights and responsibilities of member first nations. They are certainly ones that the Canadian Alliance supports. I would say to the minister and the parliamentary secretary that these are reasonable, sane and are not that difficult to implement. I cannot see that they would even cause a great problem for the department. Maybe there is a way they can segue them in, even in respect of those bigger amendments.

In total, Motions Nos. 4, 5, 7, 34, 23 and 24 are very supportable by the Canadian Alliance and we would like to see those adopted as part of Bill C-19.

[Petitions, November 6th, 2003]

Mr. Speaker, it my privilege to table in the House the names of petitioners calling upon Parliament to immediately hold a renewed debate on the definition of marriage, reaffirming, as it did in 1999, that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament should take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage.

[Petitions, November 5th, 2003]

Mr. Speaker, it is my privilege to present a significant number of names of petitioners who call upon Parliament to immediately hold a renewed debate on the definition of marriage, reaffirming as it did in 1999 that marriage is and should remain the union of one man and one woman to the exclusion of all others and that Parliament should take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage.

[Specific Claims Resolution Act, November 4th, 2003]

Mr. Speaker, my hon. colleague has served the Canadian Alliance with distinction in the past and will probably play an important role in the future with the new conservative party. The member has served as the senior critic in matters dealing with aboriginal affairs. He has a real heart for aboriginal people and a heart for justice being served. He has had the privilege of knowing aboriginal people on a fairly close basis because he has some adopted first nations children.

What is my hon. colleague's take on the absence of timelines in Bill C-6? It would allow the government to stall and stonewall for an indefinite period of time without any reasons. That is the way the bill is set up. Why would the government do this? What could happen since there are no timelines in the bill?

The member knows from his own experience with his family and with colleagues and with all the other scenarios of life that timelines are necessary if we are expected to get some recourse and make some progress. I would appreciate my colleague's response to that.

[Specific Claims Resolution Act, November 4th, 2003]

Madam Speaker, I appreciate what the member had to say in respect to this bill. We have heard some comments from the minister and the parliamentary secretary and others across the way with respect to the issue of time allocation.

I am confident with what I have seen and scrutinized in the bill, but I would appreciate having a response from the member in terms of the issue of time allocation. I would suppose that in his business and various other ventures he has been involved in prior to his career in the House and his time in Parliament, most of those ventures had certain time limits. In fact, there have to be time limits in order to get something done and in order to get movement on things.

The reality of life is that unless we have time allocations then people tend to stall and drag things out. Personal deadlines and timelines are imposed on people with respect to the corporate world and with respect to education; when assignments come due for those attending high school or college that seems pretty much par for the course. I would appreciate having the member respond to that.

In the absence of any timelines here, how can one expect any movement forward?

[Specific Claims Resolution Act, November 4th, 2003]

Mr. Speaker, you will understand that my feelings are considerably hurt by the fact that there were members across the way who did not like to hear me speak yesterday. I thought I was doing a good job in bringing forward some significant points. However, sometimes in this place very brutal measures are brought to bear, as just happened in the vote, with something that needs much more debate in the House in terms of improving Bill C-6.

Bill C-6 is no improvement over the present claims body. I differ with the minister. I do not think we will see the minister standing up in the House to say that the bill has done a much better job. In fact, contrary to what the minister said, there are a number of members within his own party, and most notably senators who were making the point and I will indicate some of that now in reading from the Senate record.

I also give notice that I will be giving substantial time to other members today. Much more significant things could be said in respect to why the bill is not a good one, why it is badly flawed and its many defects. However, I will allow others to make those points in the course of the day through to the vote at the end of the day which has been pushed forward by the government by way of closure.

Some of the other material that I referred to in the past is from an insightful document written by Leigh Ogston Milroy, called “Towards an Independent Land Claims Tribunal: Bill C-6 in Context”. I will not have the time to make a substantive reference to that but it is there for people's reading and I suggest that people do read the essay.

I want to put on the record some comments from Liberal Senator Serge Joyal. This is what Senator Joyal had to say on the record in the Senate in reference to at least one aspect of the tribunal part of Bill C-6:

In this bill, we have a proposal to establish a tribunal. A tribunal is a court of justice; it is an independent body. This independent body, according to any legal advisers, must satisfy three criteria. First, it must be financially secure. In other words, it should not depend on a third party for its supply of money in order to function. Second, the members of that tribunal must have security of tenure, which means that they must remain there for a long period of time, to be immune to undue influence.

We see that Bill C-6 is so rife to patronage, to those kind of accusations or allegations. I do not think we have the sense that there is independence at all by way of the appointment process. Then others get to critique after the fact, typically as we do with appointments, railing at the government for the inappropriate appointments that are made.

The senator went on to say:

Second, the members of that tribunal must have security of tenure, which means that they must remain there for a long period of time to be immune to undue influence. In other words, they must not make popular decisions to please the person who has the authority to appoint. We can understand that easily. Third, the tribunal must have institutional autonomy. In other words, it must rule its affairs totally outside any kind of influence.

According to Serge Joyal, those are the three criteria for an independent tribunal. He went on to say:

What is at stake in this bill? In this bill is essentially the constitutional duty to establish a system of adjudication that meets those criteria so that those who go to the court [this tribunal] will have the assurance that their claims will be dealt with properly.

When we apply those three criteria to the bill in question there are some issues pending.

That is his mild way of putting it. I would have stated it a lot stronger, but we will go with that for now. He went on to say:

One is that the judges are appointed for five years--

In a commission it is only three years. It does not even overlap two terms of a government. Judges on the tribunal are appointed for five years--

--and they might be reappointed to that or any other position. That is found in clause 41(7) of the bill. This raises the issue that a person might adjudicate on the basis of an expectation of being reappointed to that position or to another position.

Here we open the door not to a sense of impartiality, but of partiality because of the nature of the appointments and the very short duration of this court in effect, or tribunal set up under Bill C-6.

He went on to say:

That is a very important element because administrative tribunals such as the one contemplated in this bill are presently the object of an investigation by former Chief Justice Antonio Lamer. His report, expected in December--

That is coming up very shortly; we could have waited for that report.

--will analyze the various norms that administrative tribunals must satisfy in order to continue to adjudicate properly, to maintain not only justice but also the appearance of justice.

There are other aspects of this bill that raise problems with regard to institutional autonomy. The bill says, in various aspects, that its people are assimilated to public service. They do not have the autonomy that court personnel should have to remain outside influence.

In terms of financial autonomy, Treasury Board defines the scale of salaries. This is problematic too. As you know, there has been a decision of the Supreme Court in relation to payment of salaries to judges, and the court has established very stringent criteria. We have had to deal with those problems here.

He went on to talk about the fiduciary responsibility. He said:

Hence, the system contemplated in the bill is a very delicate balance between those two conflicting objectives. The mechanism put into place by this bill raises serious questions. We must be sure that this bill will meet the test of the court.

Obviously sprinkled throughout in other comments I cannot read here, he very much tips his hand to indicate that he sees it will not meet that particular test. Senator Joyal went on to say:

Honourable senators, read clauses 41 to 70 and you will realize that this is a real court of justice that is being proposed.

A court, in evaluating the reliability of that system, will apply the norms that are usually operational in a court system. This is important because that guarantees that the aboriginal people will get real satisfaction. If they are not convinced of that, what will happen? All our debates will be for nothing. All of the hours and the long sessions that the aboriginal affairs committee, under the chairmanship of Senator Chalifoux, and the time that other senators will have spent on this bill will be to no avail because the system will not be trustworthy.

And I add as an aside, all the time spent by this place in committee, in this House and so on.

In conclusion he said:

There is no doubt that if we do not reconcile the trust of the first nations people in the system we are putting in place, we will not solve the conundrum that we have found ourselves in for centuries.

I remind all of us here today that this is not comprehensive land claims we are talking about. This is specific claims, where a first nation was promised land of a certain good, fertile quality.

In some cases they were given disastrous swamp land, marsh, nothing better. Is it any wonder then that some of these bands are in the predicament they are in. With no economic development opportunity, they are like third world countries, in very desperate straits because of some sharp dealing, some dishonest dealing by Indian agents back in time. Another case would be where some Indian agent came along and sold off a chunk of a reserve without the proper permission and did not give that money and resource to the band, but pocketed it himself or disappeared in some other way. Who knows?

That is the nature of what Bill C-6 is dealing with in specific claims. As I have said before, it has definitely been long and drawn out, with delays to no end. Justice delayed really is justice denied and we have to acknowledge that.

I have made this marathon speech, although it was not as long as some other speeches in the House. It was my first opportunity in six and a half years here to speak for this length of time. I chose this opportunity because there are major defects and flaws in the bill.

The government in the Senate has acknowledged some of the main points that the Canadian Alliance and some of the other parties such as the NDP and the Bloc have made. We spoke for 45 minutes on Friday and another two hours yesterday because we think there are some major problems with the bill. It will not resolve the specific claims at all. In fact to the contrary, it just adds some more elements of delay, stonewalling and so on, and entrenches it more specifically in Bill C-6.

The few amendments that the senators had the gumption to bring back to this place quite frankly are wimpy ones. They are cosmetic. They are token, no more. We are not much reassured. We would have had more hope of some better work coming out of the Senate in respect of this bill.

As I said before, the Canadian Alliance supports the speedy resolution of specific first nations claims. Specific claims include alleged improper administration of lands and other assets under the Indian Act or other formal agreements.

I will be emphatic in stating that I hope I am wrong. I hope the minister will be right but I have no reason to believe so and he has not provided anything at all to reassure the House or others across the land.

Bill C-6 will not speed up the resolution of specific claims. There are no timelines mandated in the process. The minister made a kind of faint half-hearted attempt to say that the minister had to report back, but he can simply ask for more time. He does not have to give any kind of reason. He can do this indefinitely, on to eternity. There are no specific timelines in terms of the minister having to fish or cut bait and going ahead with this or not. He can keep dragging it out, stalling it indefinitely. That is one of the major problems many people see with this process and with Bill C-6 in this regard.

There are no timelines mandated in the process at all. There is nothing to assure us that it will not go on indefinitely. Built into the bill are numerous opportunities for the government to delay and to stonewall with impunity, with no punitive measures against it. It has utmost immunity with respect to that.

I ask the House and I ask people across Canada, who is standing up for the taxpayer in this new process? Bill C-6 in my view and in the view of many discourages the use of the less costly alternative dispute mechanisms. As we well know, going the route of more costly court cases wastes taxpayers' money. It wastes significant dollars that should be used to resolve these situations with first nations across our country, giving them the due and proper justice that they should have. Who is standing up for the taxpayer? Who is standing up for first nations and finally giving them the proper recompense that they deserve in these cases?

The new claims centre will not be independent. We have talked about that and I wanted to state that once again on the record. All adjudicators and commissioners will be appointed by the government with some token input from first nations, mostly after the fact. The appointment will be made and then we can make a comment. We can critique it. I can and anyone can. However what is the good of that?

Unlike the joint task force of 1998 that suggested the decent process of having individuals chosen for this particular body, the government instead has thumbed its nose at that. We are going to have all kinds of allegations and suspicions of conflict of interest, partiality and patronage in the process. That will ultimately destroy its legitimacy in the eyes of the first nations people.

We have been urging the Liberal government to take a serious look at the 1998 joint task force report. Considerable hours and a lot of time was put into that report by a good many capable and qualified people who came to some bottom line positions. It is not that they were all pleased on either side, which generally tells us that it had to be a reasonably fair process, but it was something that they could live with down the road and would give it the kind of ability to resolve the outstanding specific claims across the country.

We have been urging the government to go back and look at that. Perhaps somewhere down the road when we have to rewrite a bill because of the mess that this one is in, some of those reasonable recommendations may be brought into a bill in the future which would address what we perceive to be the major flaws and defects of the present Bill C-6.

I cede the floor to others regrettably, lamentably when there was much more I would have said on the bill and pushing back against Bill C-6. In conclusion, it was rather telling as well when the minister was pressed by a member of the New Democratic Party this morning who asked him if he could name one band across the country that supports Bill C-6. There is not one band to my knowledge that supports Bill C-6. I am not naive. I understand that we are never going to have a bill in any area, no less in this area, where all the first nations are jumping on board saying that it is a wonderful piece of work and a good piece of legislation.

It is also very telling when not one band steps forward to say that it is a good bill. Then we should know that we are in trouble and that we have a problem. If we were unable to satisfy even so much as one band anywhere in the country, never mind a significant number or maybe even a majority, then Canadians who are looking at this and viewing it might think this is badly drafted and badly flawed legislation. It is not satisfying anybody but the minister, and he alone, so he can complete his agenda before he walks off into the sunset.

Having said that, I think it is very plain that Canadian Alliance members object to the bill. We have done our very best in standing against this disastrous legislation. It will go down in the Hansard record that we thought it was a problem.

If I am ever proved wrong, I would be more than delighted, but I think my grandkids sometime down the road will look back to read grandpa's words and understand that the bill, as is proposed today, did not solve the problems. In fact it will have created more problems than it possibly could have resolved.

With that, we yield the floor to other good colleagues to continue to make the point of the major disastrous problem with Bill C-6.

[Specific Claims Resolution Act, November 4th, 2003]

Mr. Speaker, this independent claims body that is being set up under the government's bill is anything but independent and the minister knows that. There is token involvement from first nations after the fact, after the appointments are already made. The minister is quite aware of that.

It will not do anything to help breed trust among the parties involved. As well, who is standing up for the taxpayer in the process? The bill before us discourages the use of the less costly alternative dispute mechanisms. We are going the route of more costly court cases time and again, wasting taxpayers' money and those resources that could be applied to first nations.

We have been urging the Liberal government to go back and seriously look at the 1998 joint task force report which had some reasonable recommendations that would address what we perceive to be the major flaws and defects of this bill. His own Liberal senators have acknowledged that. Why does he not seriously consider and adopt into Bill C-6 the reasonable recommendations of the 1998 joint task force report?

[Specific Claims Resolution Act, November 4th, 2003]

Mr. Speaker, the minister knows very well that those amendments from the Senate are pretty wimpy, pretty much token and nothing of an adjustment in a significant way at all.

The Canadian Alliance blue book states support for speedy resolution of specific first nations claims. Specific claims include alleged improper administration of lands and other assets under the Indian Act or other formal agreements.

In other words, in some cases the Indian agents took and sold off Indian reserve lands and lined their own pockets with the money. That is the kind of injustice that we are talking about here today.

Bill C-6 would not speed up the resolution of specific claims. No timelines are mandated in this process. In fact, there are numerous opportunities for the government to delay and stonewall with impunity.

I would like to ask the minister why there are no timelines of any kind in this particular bill to get some resolution and some justice to native people since justice delayed is justice denied.

[Specific Claims Resolution Act, November 3rd, 2003]

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.