Maurice Vellacott

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

It is more than a bit annoying.

The report states:

The Task Force is a technical table composed of regional First Nation representatives and federal officials from Indian Affairs and Justice. It began its work in earnest in the Spring of 1997 and has reached--

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

Mr. Speaker, I hope they stick around. I am a little offended when they step in and out again but I guess that would be their choice.

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

Mr. Speaker, I know they will be watching from the TV monitors out in the lobby as they are eating their lunch and hearing the very important things that are being said this hour in response to the report from the Senate with regard to Bill C-6.

When I left off on Friday in terms of this rather important bill under consideration, I was saying that I do not dispute the point that making the centre independent not to mention giving it the appearance of independence is no small challenge. It is a challenge. As I said last week, it is clear to me that the government is not up to the challenge.

Proposals to help give the centre independence and the important appearance of independence are staring the government in the face from the pages of the joint task force report, to which I will refer later. There are large blocks of that document that are very helpful. There is another document by Leigh Ogston Milroy which talks about the need for independence with this particular body.

A number of amendments were put forward in committee by the Canadian Alliance and there were some from other parties as well. There were a significant number of amendments from our party, yet those were completely ignored and swept aside.

Another Senate amendment is a transitional provision to ensure that those who are claimants under the current specific claims policy are also entitled to make representations regarding appointments to the new claims centre.

Another Senate amendment will allow first nations to make representations as part of the government's three to five year review process mandated in the bill. This will affect clause 76 of the bill. Unamended, Bill C-6 does not obligate the government to seek anyone else's input into the review process or to document their thoughts.

Even with the Senate amendment, nothing forces the government to make public and be accountable for concerns that the many first nations have with the claims resolution process. How does the government expect to win over the confidence and the trust of first nations when it ignores them in such an obvious manner? How does the government expect to convince people that the claims resolution centre is independent when it is keeping such tight control over every aspect of the process?

Indian chiefs from across the country as well as the Assembly of First Nations have made their position very clear, that the appointment process mandated by Bill C-6 undermines any claim that the centre will be independent and impartial. If they use it at all, the first nations will not accept rulings against their claims because they lack confidence in the impartiality of the centre.

The government has set up a process that will not resolve anything in terms of producing closure or finality to a claim.

The parliamentary secretary told us in committee that the minister would consult first nations. Having said that, he was unable to explain why the minister is unwilling to put that promise in the bill. The review process sends the message that the government is only interested in the effectiveness of the centre from its own perspective, rather than understanding its impact on all parties concerned.

I believe that is a major flaw and a major problem in the bill. If the bill is not looked at in terms of the other parties involved, in terms of getting the proper resolution, saving us all kinds of tax dollars if we have to use the more expensive and extensive process of going through the courts, this is not taking into account those considerations.

The concerns about trust and lack of independence of the proposed claims centre have been raised numerous times in the Senate as well. I frankly confess that I am surprised that the Senate report to the House did not include any stronger amendments to rectify the situation.

For example, Progressive Conservative Senator Terry Stratton noted at one point:

Under the present system Canada is already the judge and jury. Bill C-6 retains this concept and adds elements to this conflict.

The federal government retains sole authority over appointments to the commission and tribunal and retains authority over possessing the claims, which undermines any concept of independence. Appointments are made on recommendation of the minister, the same minister responsible for defending these claims. Obviously, this system is ripe for political patronage considering that the commission appointees have no qualification requirements.

Liberal Senator Gill told his colleagues:

I have trouble seeing how this tribunal or the appointed commissioners or judges would be independent. I have a lot of trouble seeing that independence.

At one point Senator Nick Sibbeston, speaking in defence of the bill, argued:

There is no other system. No other approach is possible in our system of governance, where the government appoints people to tribunals and boards. We have to live with that system and trust that the appointees are not in a conflict of interest situation. We must trust that they can make judgments based on their best ability without regard for who appointed them.

Senator Sibbeston and others speaking on behalf of the government on this issue are arguing that we are dealing with an either/or situation, making no room for a middle ground.

Elsewhere in Senate debate, Senator Jack Austin, also speaking in defence of the bill, objected that the Assembly of First Nations and other aboriginal groups were demanding veto powers over government appointments. The Assembly of First Nations has indicated that it can live with the recommendations that are in public view for all to see in the joint task force report.

As I indicated in my speech last week, although it gives aboriginal groups much more input into the appointment process than they would have under Bill C-6, it would still give the government the final decision making power. First nations can be given far greater opportunity for input into the review process as well without giving them veto powers over the final release of the government's report.

Mr. Speaker, as you well know from your many years in this place, there is a mechanism in Parliament whereby in the case of committees, opposition parties can release dissenting reports. No doubt, Mr. Speaker, you were in on that process when you sat on the opposition side.

Opposition reports, or dissenting reports, are not uncommon in this place. Those dissenting reports are given when individuals do not agree with a committee's final report. Those opposition reports are tabled and made public. They have official status but they do not stop or obstruct the government's legislative agenda from moving forward.

I do not understand why there is such a lack of creativity on the government side when it comes to the specific claim centre that it cannot come up with something comparable to that such as dissenting reports or whatever one wants to call them in the three to five year review process mandated in the legislation.

Senator Sibbeston raised an interesting point in the comment which I quoted a few minutes ago. He talked about trust and about how important it was. We are supposed to “trust that the appointees are not in a conflict of interest situation”. He said that we must trust that appointees can make judgments based on their very best ability without regard for who appointed them.

The hon. senator talked about trust in the context of the industry minister's interesting relationship with industry giant Irving Oil. We would not want to forget the special perks that other ministers have received from Irving. When we are told to trust the government, we should not forget about the Minister of Human Resources Development and her admission regarding Irving perks. That minister is already famous for the HRDC boondoggle that was exposed under her watch. Trust indeed. There is also the involvement of the environment minister and who knows who else will admit to an unethical relationship with Irving later on today, tomorrow or sometime during the remainder of the week.

When we think about trust and the current government, we might also keep in mind the flagrant abuse of taxpayer dollars through the billion dollar boondoggle gun registry. There has been no end to the ink used to write on that exposé of scandalous waste of taxpayer dollars and then we use the word trust.

That scandal in respect to the gun registry has been brought to us by the current industry minister. Everything he touches seems to turn to scandal and boondoggle it would appear, at least in terms of the number of portfolios he has had.

There are the current health minister, the justice minister and now the solicitor general, and there are all of these different problems in respect to the kinds of perceived conflicts and scandals they have been involved in.

Speaking of the justice minister, this is an individual who is presently sacrificing our parliamentary democracy on the altar of judicial activism and so we had hearings all across the country. We listened to good, qualified, competent people who presented considered, reasoned opinions to the committee and at the end of the day when it was just about to release its report, it was pretty much shut down. Other individuals were brought in to stack the committee. It did not matter that the members did all this good work over some considerable period of time in attempting to get an understanding of the crucial issue of marriage in the country.

As well, there is no question from the vast majority of witnesses that the way in which the government is going in terms of homosexual marriage is not the direction the committee wants. In fact, it would have been along a different line, possibly civil or domestic partnerships or something like that but certainly the retention of heterosexual traditional marriage was the way the committee obviously would have gone.

At the end of the day the government threw that out or did not even appeal to the Supreme Court of Canada. A pretty good body of opinion is asking why it did not do that. It is because it knew in fact it would have been upheld; the traditional heterosexual time honoured definition of marriage in the country would have been upheld.

The Minister of Justice at that point did not trust at all what the committee did. He was not to be trusted because he really sabotaged and hi-jacked the whole process to his own end, to his own purpose and to his own agenda. Instead of taking it to appeal which would have upheld the traditional heterosexual time honoured definition of marriage, the whole thing was sabotaged.

The justice minister was trying to get in the way and obstruct others who were going to come forward in lieu of the government on that particular issue, defending in our country what has long been held to be the proper definition of marriage. It is as constitutionally valid today as ever.

I say that simply because there is the issue of trust. Can we trust? Ought we to trust? Ought we to be so naive as to trust when we have things like that going on in our country? I would say it would obviously be very naive.

Getting back directly to Bill C-6, that is why when Senator Sibbeston talks of trust, either he is thinking that we are a little bit naive and fairly stupid in this whole thing or he believes it himself and that is not even a strong statement in respect to his own credentials for his role.

Trust in the current government is probably at an all time low because of a number of these things. We cannot simply trust the government.

How would it go over, Mr. Speaker, if you showed up at a place in your riding, or if any of us did for that matter, and walked in saying, “Trust me, I am from the government”. I think it gives a little sense of it if you, I, or any member here did it.

I am slightly shielded at this point because I can say, “Trust me, I am from the official opposition party, the Canadian Alliance”. But if I were to walk in and say “Trust me, I am from the government,” I can imagine what kind of a response that would get from constituents. “Trust me, I am from the government” is not an assurance that goes very far today, not with the government engaged in permanent damage control due to unethical behaviour and gross incompetence.

Canadians want to make their government accountable by seeing their promises stipulated in legislation. They do not want a verbal statement that the government is going to do such and such; they want it in legislation. Let us defend it, make sure it is entrenched there and then they will be more likely to believe it. Verbal assurances are not good enough, certainly not when there is the kind of legacy that the Liberal government has.

What is so difficult about putting some bottom line, minimum standards in place in terms of the credentials required by a claims centre employee to mitigate against the risk of patronage and conflict of interest? That could be done, it should be done and it is necessary for it to be done. Such a move would increase the confidence of Canadians, including the aboriginal claimants involved in these claim disputes.

At the same time, to bring my comments back specifically to the three to five year process, let us give first nations a better mechanism to have their voices heard, especially if they do not agree with the government's report.

The Senate has made another amendment that seems designed to address concerns over conflict of interest. It may be of some benefit in that respect, although that remains to be seen. We are not quite sure. The amendment in the words of the Senate Standing Committee on Aboriginal Peoples chair, the hon. Thelma Chalifoux “seeks to protect the impartiality of the commission by limiting employment with claimants for certain appointees following the completion of their term”. It also imposes a temporary employment restriction with the Department of Indians Affairs and Northern Development for prior appointees.

The government should make further amendments to deal with the independence and the impartiality of the claim centre before sending the bill back to the Senate for final approval, instead of simply accepting the Senate report as written.

Bill C-6 states that the majority of the adjudicators, including either the chief adjudicator or the vice-chief adjudicator, must be members in good standing of the bar of a province or la Chambre des notaires du Québec. As I mentioned a few minutes ago, the bill says nothing about the professional qualifications of those eligible for appointments to the claims commission. In a saner time one might be able to trust the government to make competent appointments, but the scandalous revelation of out of control bureaucrats that have been surfacing in recent months lead to some real concerns about the need for greater clarity as to the credentials of potential appointees to the claim centre.

It might also be worth examining the length of the terms that the appointees hold with the centre. First nations have expressed concern that the appointment periods for the chief and the vice-chief commissioners and adjudicators are only five years and for the regular commissioners and adjudicators the period is three years, with the possibility of reappointment available in all these cases. First nations, and rightfully so, fear that these short periods of service will tempt the officials to rule in favour of the government that appointed them so as to ensure they are reappointed. That concern was also raised during Bill C-6 debate in the other place, in the Senate. If the appointee sits for such a short term and has the option of being reappointed, will his or her interest in being reappointed affect his or her commitment to impartiality when hearing the claims?

The final amendment proposed by the Senate adds to the tribunal's authority by amending section 47. Section 47 deals with some of the responsibilities of the tribunal. The Senate amendment adds to the tribunal's responsibilities. If this amendment passes, the tribunal will be able “in relation to a specific claim that is before the commission to summon witnesses or to order production of documents”.

In other words, if one of the parties is not forthcoming with information deemed important by the commissioners to resolving the particular case at hand, the commission can request the intervention of the tribunal for the purpose of requiring witnesses to appear before the commission and to require the production of documents that would help in evaluating the claim. That on the surface seems like a reasonable amendment. I might be able to support that if we were to get that far, but I am not so inclined to think we will at this point.

Although not reflected in the amendments from the Senate, the question of transparency with the specific claims resolution centre was a significant topic of debate in the Senate. I found it very interesting to note and to understand what was said there on this matter. It was the subject of some observations which the Senate added to the end of its report to this House.

That is another area of the bill that needs to be dealt with to build confidence and trust in the government by our first nations aboriginal people across the country.

What we are talking about regarding transparency are provisions to make the process effective and efficient. I think everybody concerned in this process would like that. We want a process that is expeditious, not one that is full of delay, obstruction and stonewalling. Sadly, we see the very opposite in Bill C-6. In the legislation there are far too many opportunities available to the government to stall and to delay the process of considering a claim.

As individuals well noted, it has been said numerous times in speeches delivered here and elsewhere, that justice delayed is really justice denied. There is no question about it. If we hold off people indefinitely and obstruct, stonewall and delay, then justice delayed is simply justice denied. That is a sad statement.

The comments from the Senate are remarkably similar to the concerns that we raised in the House and in the aboriginal affairs committee earlier this year. Let me read the Senate comments into the record today. I quote:

One of the primary goals of this Bill is to provide for more speedy resolution of claims. Nonetheless, there are many areas of potential delay built into the process. Most notably, there is no requirement on the Minister to make a decision on whether to accept a claim for negotiation within a set time period. We have been told that this flexibility is necessary because of the complexity of many claims and the limited legal and other resources available to the Minister to make these determinations. As well, the government may be limited in the number of claims it can address because of the budget available for settlements. We would therefore urge the government to allocate significant additional resources to the process of validity determination, negotiation and settlement of claims so that the admirable goals of the Bill can be met.

We would ask that the Minister, in the review of the Act in three to five years, pay particular attention to the impact of the issues of delay and resources that have been allocated to the process of validity determination.

We, of course, believe the government should make the necessary amendments to the bill immediately and not put it off. As I noted earlier, the government has protected itself fiscally by establishing a budgetary limit to the funds it can distribute each year to settle claims. Then to go on to say that it needs to build on such protections at other points in the bill is really nonsense.

There is nothing stopping the government from resolving claims in any given year that total an amount greater than that which has been set aside in the budget to allocate to such claims. In such a situation the resolution process could include a provision to add an appropriate amount to the claim payout to take into account the fact that it cannot be allocated until the next fiscal year or whatever subsequent date on which the payment would be made. Therefore, if the total is used up within a year, that is fine, then there is an agreement, a written legal binding part of the text, that says it will be paid out of another year's or maybe the total amount could be increased altogether. However, I would say that it is fairly uncreative. I can attribute other things to it as well, but do not say that it cannot meet these bigger claims because it does have the total allocation, when it could be paid out in the subsequent years. I am sure that would be acceptable to that band rather than setting it aside altogether.

I am sure that the simple fact of resolving a claim would be a step forward for peace of mind and security for many native people, even if the payout for that claim had to be delayed by a year or two based on prior knowledge of budget constraints. To leave first nations claimants in a state of insecurity and flux over the final outcome of their claims simply because the money is not available to pay it out in any given year is quite frankly an indefensible position.

I want to take some time now to remind the House of the numerous specific areas in the bill in which the government has built in opportunities to delay and obstruct the claims resolution process.

The minister, for example, if he decides not to negotiate the claim is nowhere obligated to explain his reasons for that decision. If the claimant decides to challenge the minister's decision, the minister has to provide disclosure in his defence at a later date before the claims tribunal or the court. The claimant on the other hand is required to provide a full accounting of his position and rationale for it at the outset of the process.

One would expect that in a context that is supposed to be conciliatory and guided by alternative dispute resolution mechanisms rather than the more adversarial environment of the courts, that Bill C-6 would make clear the responsibility of both parties for full disclosure at the earlier point in the process.

The government has also built many mechanisms into the bill to enable delay and obstruction in the process of considering a claim. It has avoided the establishment of tangible timelines contrary to recommendations in the 1998 joint task force report, which we want to make some reference to later, to ensure a speedy resolution of claims.

That 1998 joint task force report had some very good, notable and worthy recommendations. The government has also rejected joint task force report proposals that would have given the claimant or the commission the ability to move the process forward if the government seemed to be taking excessive time to consider a claim.

The first example of what we might call a stalling clause is the provision for multiple, preparatory meetings. It is probably fair to call it a stalling clause because that is the net effect of what results here. Following the initial preparatory meeting, the commission is authorized to hold additional such meetings at the request of either party. The minister can conceivably use this provision to delay the process.

Indian representatives who spoke with us said that one preparatory meeting was generally enough and therefore the option for additional meetings was not likely to be a provision found useful by first nations. Concern was raised that it existed more for the benefit of the government for use as a stalling mechanism. People were pretty wise to that from all sides of the table. I think the government was also aware of that, but would obviously not want to concede that or publicly fess up to that.

The bill does not require the commission to hold additional meetings at the request of either party, and one could imagine the government using this point in its defence to try to defend the indefensible here. However, without protections in the bill to ensure that the commissioners are competent and free from conflicts of interest, this really means very little. As we have said before, we need those specific protections in the bill along the lines of the competence of commissioners free from conflict of interest and so on. We need those in writing. It is not good just to have verbal assurances of same. A handshake, unfortunately, is not adequate for the job in this case.

Later in the process where the bill discusses the minister's need to consider the merits of the claimant's case and to make a decision as to whether he will negotiate the claim, the bill gives him six months to report back with a decision. Clause 30 of the bill also states that the minister can come back to the commission in six months and instead of reporting his decision, he can say that he needs more time.

This might seem like a reasonable provision on the surface, if it simply extended the government's deliberation for another 6 to 12 months. When we look at it more closely, we find out that timelines and final deadlines are completely absent. They are nowhere in there, not in respect to a 6 to 12 month deadline. Therefore, the government could theoretically ask indefinitely for additional six month extensions carrying on to eternity, I assume. Obviously, that is a real problem.

Earlier in committee, the Canadian Alliance attempted to amend this section with a one year limit on the process, but the government rejected that amendment as it did with pretty much all of our amendments. Hansard records indicate that this aspect of the process was a topic of some debate and concern in the Senate, but unfortunately that concern was not translated into an amendment in the Senate's report to this House.

The amendment that we in the Canadian Alliance proposed would have required the minister to apply to the commission for more time rather than to simply declare that he needed more time. That is how it stands now: that he simply needs more time. Rather, what I think was our very reasonable amendment stated that the minister had to apply for more time, thereby essentially giving the commission the right to deny the government's request, enabling it to say no, it has had time enough. As it stands now, the minister simply says he needs more time and that is it. There is no verdict that can be rendered back to him to say that he cannot have more time.

The amendment we put forth and the proposal we made also would have required the commission to hear from the claimant before making a decision. Then it could render a decision on whether that period of time was required.

Bill C-6 does not even require the government to provide its reasons for insisting on an extension to its reporting deadline. Can hon. members imagine that? The government can say it needs an extension without any indication of how much time it needs and without having to give any reason why. I find that extremely absurd and nefarious at worst.

We are dealing with a government that despises accountability and transparency. Subclause 30(3) states that the government may provide the reason that it needs more time “if applicable”. The way this clause is phrased, it treats the practice of not providing reasons as normative. That is not uncommon, as we hear that across the way in question period as well. Not giving reasons is the norm. The exception would be that in some really remote and strange case one might be compelled to provide some sort of reason. That is the way the clause is phrased. It treats the practice of not providing reasons as normative, saying that the minister need only produce reasons if it is deemed “applicable” to do so.

I do not know what situations would make it not applicable for the minister to provide reasons for delaying the process and leaving the parties hanging there. One of my amendments in committee would have deleted the words “if applicable” and just knocked that out of there, but again, the government members voted that down. Apparently this secrecy provision, which is almost what I would call it, is important, even though the minister does not tell us why.

It is this lack of transparency in the bill that raises serious questions about how effective it really will be in clearing up the terrible backlog that exists today in respect of specific claims. The government even added a fourth section to clause 30 to protect itself against penalties for stalling the process. Subclause 30(4) states:

No passage of time in relation to the decision on whether to negotiate a claim may be considered as constituting a decision not to negotiate the claim.

This section reinforces the fact that the bill makes no provision for the claimant to circumvent this part in the process. The commission may not treat the lack of a decision from the government as a decision one way or the other, so it would remain in limbo until the minister decides to announce his decision.

It would be worthwhile at this time to consider for some moments part of the legal analysis of Bill C-6 produced by the Assembly of First Nations as it pertains to the particular issues of accountability and transparency in the claims process proposed in this legislation. Here I will quote:

Under Bill C-6, the federal government unilaterally controls the pace at which claims are considered. Bill C-6 permits the Minister to 'consider' a claim indefinitely at an early stage in the process. There are no time limits that must be obeyed. No independent body can ever say 'enough is enough, the claim goes to the next stage'. A claim might have to go through an elaborate series of distinct stages and steps before compensation is ever paid. This could include:--

Here the Assembly of First Nations lists distinct stages and steps before compensation is paid:

--a funding application;

--initial preparatory meetings;

--Ministerial consideration;

--mediation;

--further delays while the Minister considers an amendment that the claimant makes to its initial claim;

--an application and hearing to convince the commission that mediation has been exhausted;--

I am getting a bit exhausted just reading through this whole thing.

The steps continue:

--a hearing in front of the Tribunal to determine compensation;

--mediation to deal with compensation;

--an application and hearing to determine whether mediation has been exhausted;

--proceedings in front of the Tribunal;

--a five year delay while the award is paid out;

--judicial review of the award.

I can rhyme all that off in just a few short minutes here, but each one of that number of steps and stages takes considerable and lengthy time in and of itself. They are distinct stages or steps that would be required to be undertaken.

The Assembly of First Nations continued:

Many of these steps could have been eliminated or combined. With others, the delays could have been controlled by giving an independent body control over the pace by setting a strict time frame in the statute itself. The Joint Task Force Model Bill was built for making major headway on the backlog. Bill C-6 is almost certain to ensure that the backlog grows.

That was the thing. Even with all of those steps that we listed there, there was no strict timeframe in respect to any of them, so members can imagine that it would go on for an awfully long time. It is just a fact of life that if some timelines and timeframes are not set, then things go on indefinitely. In all courts of law, in all those processes, there is something to address that, yet we do not have anything here at all.

In a footnote to these comments, the AFN noted that:

Under the [Joint Task Force] report, the minister did not have the discretion to consider a claim indefinitely.

I think that was a very good thing about the joint task force report, one among many things. In that joint task force report, the minister did not have the discretion to consider a claim indefinitely. The AFN went on to say:

Once a claim was lodged, the Commission and Tribunal, not the federal government, had the primary say over the pace of proceedings. A First Nation was not required to attend more than one preparatory meeting, or to prove to a third party that mediation or other “alternate dispute resolution” was exhausted... When a claim reached the tribunal, both validity and compensation could be dealt with together.

As I have examined this particular bill and the claims process in general, including the entire history leading up to the place at which we find ourselves today in the House, these observations made by the AFN generally strike me as quite reasonable.

Another problem with clause 32 is the obstructionist language used in terms of the requirements the claimant has to fulfill before the commission is permitted to send a claim to the tribunal. A claim can go to the tribunal if the government refuses to negotiate it following discussions facilitated by the commission with the help of alternate dispute resolution mechanisms. If the claimant still wants to pursue his claim, he can ask the commission to refer it to the tribunal for a binding decision.

The problem here is the excessive threshold of proof that the bill imposes on the claimant before the claim can go before the tribunal.

Subclause 32(1)(a) states:

the basis for the claim and all matters of fact and law on which the claimant relies in support of the claim have been fully and clearly identified and adequately researched and have been considered by the Minister;--

Subclause 32(1)(b) states:

all dispute resolution processes appropriate for resolving the issue have been exhausted without the issue having been resolved;--

These sections essentially require the claimant to prove to the claims commission that he has done absolutely everything that he could possibly do within that alternate dispute resolution process before the commission can send the claim to the tribunal to consider its validity.

The absolutist language in this clause imposes an excessive if not impossible threshold on the claimant to reach before he will be permitted to pursue a hearing before the tribunal. If pro-government patronage appointees are sitting on the commission, they could help the government to use this provision as yet another stalling tactic. If the claimant does not have every single t crossed and every i dotted, this step in the process can be another place to delay justice for aboriginal people and, as we have said before, justice delayed is justice denied.

Also as we have said before, first nations have pointed out that they do support the use of alternative dispute resolution mechanisms, and that if the alternative dispute resolution process is working for a particular claim, it is in their interest to make it work. First nations therefore say they do not understand why the government is using this big stick approach to ensuring the use of alternative dispute resolution mechanisms--unless it is another mechanism to be used as a stalling tactic, of course, which would explain why the government would be of a mind to use it--and that it is a matter of trying to force the claimant to continue to sit down with the federal government even long after any reasonable person would have observed that nothing further could be gained by additional negotiations.

One comment we received from first nations on this issue is as follows:

Alternate dispute settlement mechanisms, such as mediation, only work if both parties are committed to making it work. The best judge of that is the parties themselves.

The very best individuals to know that, the best persons to know that, are those who are sitting at the table, those parties themselves. The comment continued:

A claimant should not have to “prove” to the commission, in another potentially expensive and dilatory proceeding, that alternative dispute resolution is “exhausted”.

Now they have to prove that it is not working, with the burden of proof being on them. The comment continued:

The current provision allows the federal government to further stall and frustrate the process by dragging its feet with respect to its participation in the alternate dispute resolution process.

I want to move to discussion of the compensation phase of the process. Assuming that the tribunal has made a binding decision that the claim is valid, that it is a bona fide claim, then both parties have to go back to the commission to try to negotiate the appropriate compensation for the claim. That is dealt with in clause 35 of Bill C-6. Subclauses 35(1)(a) and 35(1)(b) of this clause duplicate those in clause 32.

Subclause 35(1) essentially requires the claimant to prove to the claims commission that he has done absolutely everything that he could possibly do within the alternative dispute resolution process before the commission can send that claim to the tribunal to consider its validity. As I said before about absolutist language, in this clause it imposes an excessive if not impossible threshold on the claimant to reach before he will be permitted to pursue a hearing before the tribunal. If pro-government patronage appointees--I said it before and I will say it again--are sitting on that commission, they could help the government by using this provision as another stalling tactic.

First nations have pointed out that they have supported the use of alternative dispute resolution mechanisms and they would be willing to use that process. I think they are the ones best, willing and able to decide whether it is working, and the government across the other side as well, rather than forcing that individual or those claimants to sit down with the federal government even long after reasonable people would have observed that nothing further could be gained by additional negotiations.

Some first nations have said that if alternative dispute resolution mechanisms do not work by the end of one year, there should be a provision for the claimant to request that the claim be transferred to the tribunal. One representation we received states in part:

After one year of attempting to negotiate a resolution, the claimant should be free to proceed to the tribunal. It should not have to go through further hoops, involving additional delay and expense, to show that it tried to exhaust other means of settlement. It is unnecessary and unfair to require the claimant to exhaustively state its case, including all of its evidence and legal arguments, prior to the tribunal hearing. No one is required to do so in any comparable litigation or arbitration context.

The representation goes on to say:

The Minister should not be able to delay resolution by dragging a First Nation through a slow or endless series of 'negotiations'. Any First Nation that can achieve a reasonable settlement by negotiation will do so. Why would it risk losing at the tribunal?

These certainly seem to me to be reasonable observations. I think other people, as they examine, scrutinize and carefully look over the bill, would draw the same conclusion.

I am not saying that no criteria should be stipulated as a basic standard that has to be met by the claimant before the commission can transfer the claim to the tribunal. Perhaps there are ways in which the claimant could unfairly take advantage of a situation in which no criteria are required. But at the very least, the criteria should be modified with changes to the absolutist language that currently exists in the bill.

As I consider the lack of independence and transparency in the claim centre proposed in Bill C-6, I continue to be astonished at the government's claim that this is an improvement over the current situation. Even in the Senate, the hon. Jack Austin, speaking on behalf of the government, stated numerous times that:

The centre will create a more independent, impartial and transparent system.

He also claimed that:

Bill C-6 is the result of a substantial joint Canada-First Nations task force process.

Does the government believe that if it says the same thing over and over again--in the Senate or anywhere in the country--that no matter how absurd it is, people will eventually believe it? It clearly has not taken into account, in a substantive manner, the recommendations of the joint task force report of 1998.

It does not matter what Senator Austin or others have said. They can say it until they are blue in the face, but it does not make it so. It can simply be looked at and it is not on too many pages in that report. We eventually realize how far it falls short of those recommendations there.

Thankfully, aside from the government senators, Progressive Conservative and some Liberal senators were willing to challenge Senator Austin's claims on the independence of the Bill C-6 process, as well as his insistence that it was fairly representative of the joint task force report of 1998.

We also had Canadian Alliance Senator Gerry St. Germain make representations to say that what was in Bill C-6 was not independent as reported back to the House from the Senate. For the record, the hon. Terry Stratton, a Progressive Conservative senator observed that:

The [Indian Affairs] minister, in his presentation to the committee, referred to the joint task force report. He stated that there were two areas where they did not agree with the joint task force report and, therefore, did not follow the recommendations of the task force report. However, the aboriginal presentations stated to us quite clearly that far more than just two references to the JTF were ignored. As a result, because there were so many problems with the bill, not just two, they maintained that the bill should be rejected. There was a conflict between what the minister had stated and what the aboriginals had been stated with respect to the JTF.

Senator St. Germain stated, for example, that:

The government has built mechanisms into this bill that will delay and obstruct the process of considering claims. It has avoided the establishment of tangible timelines to ensure a speedy resolution of claims. This is contrary to the recommendations in the 1998 joint task force report.

Senator St. Germain also noted:

Bill C-6 would permit the minister to consider a claim at the early stages of the process indefinitely.

This reinforces exactly what we have said, what we as members of the committee have said, and what I, as a member of the Canadian Alliance, have said. The process can be carried on indefinitely. He went on to state:

There are no time limits that must be obeyed. No independent body can ever say, “Enough is enough, the claim goes to the next stage.” The claim might have to go through an elaborate series of distinct stages and steps before compensation is ever paid. Many of these steps could have been eliminated or combined with others. The delays could have been controlled by giving an independent body control over the pace or by setting a strict timeframe in the statute itself. The joint task force model bill was built for making major headway on the backlog. Bill C-6 is almost certain to ensure that the backlog grows.

Senator St. Germain then pointed out:

The AFN also noted that under the 1998 joint task force report, the minister did not have the discretion to consider a claim indefinitely. Once a claim was logged, the commission and tribunal, not the federal government, had the primary say over the pace of the proceedings. A first nation was not required to attend more than one preparatory meeting or to prove to a third party that mediation or other “alternative dispute resolution” was exhausted. When a claim reached the tribunal, both validity and compensation could be dealt with together.

As we can see from these comments, the concerns over the integrity of the government regarding the joint task force meetings is in question, at least in the eyes of first nations peoples. Why would the government go through that process, all the countless hours, in supposedly good faith, to get something of a meritorious document of that sort, and then ignore it?

Unfortunately, that happens with too many reports around this place. We go through the effort and then the report sits on a shelf collecting dust. It is not followed-through for one reason or another. That is why people question the integrity of the government regarding the whole lengthy process of the joint task force meetings. That is why first nations people, who participated in that process in good faith, question the whole process, particularly the government's intent and whether or not there was any good faith.

If the government decided that it could not stomach the recommendations of the joint task force report, then it should have the courage to say so, rather than pretending that Bill C-6 is a natural step in the process, that it is an evolution from the joint task force report of 1998, when clearly it is not.

The government should be bold enough to tell us there are problems. It should acknowledge where it sees problems so we can have some debate on this rather than the subterfuge that everything is fine and in Bill C-6, when that is obviously not the case.

I want to turn my attention to another example in Bill C-6 of the government's hostility to the principles of accountability and transparency.

Clause 77 of the bill gives the governor in council the authority to make regulations. Mr. Speaker, you have been in this place long enough to know that the Canadian Alliance, and perhaps members from every party in the House, are rather uncomfortable with the idea of the governor in council, in other words the government or the cabinet, making and changing laws behind closed doors, doing it by way of regulations beyond the scrutiny of Parliament and the Canadian public.

That is not to deny that sometimes that is necessary, particularly the fine points, the detail and so on, but obviously, it must adhere to the principles in the bill, not with regulations being made thereafter and going off in a different direction. That seems to violate the very letter and spirit of any bill if changes are done by way of regulations.

The reform party, before it became the Canadian Alliance, and members of other parties, have made it clear that they have considerable concern and unease about some of these things being made by regulation and, therefore, no scrutiny by Parliament. It is sometimes an easy matter to insert a clause here or a phrase there where it is not going to add thousands of pages, and then it does not have to be done in the regulations. It is plain for all to see in the bill itself.

This whole matter of too frequently relying on regulations to change laws, and often violating what would seem the spirit and letter of the bill, is a dangerous practice. It undermines Parliament by ignoring, and even ostracizing and diminishing the role of parliamentarians in this place, members of all parties who work good and hard making good legislation for people concerned. We need processes in place with respect to any bills that come before us that encourage and ensure democratic accountability.

Specifically in Bill C-6, the governor in council has the authority to add to part 2 of the schedule the name of any agreement related to aboriginal self-government, and to prescribe anything that may, under this act, be prescribed. We have a lot of “any” and “anything” there and that seems to open it up pretty wide.

Let us look at the second part of this provision, “the authority to prescribe anything that may, under this act, be prescribed”. Two places where the government will have the authority to make rules for the claims process outside the supervision of Parliament after the bill has passed are in subclause 32(1)(c) and subclause 35(1)(d).

Subclause 32(1)(c) is one of the conditions that claimants must meet before the commission is permitted to refer their specific claim to the tribunal for the purpose of determining its validity. It reads:

(c) the claimant has, in prescribed form, waived any compensation for the claim that is in excess of the claim limit as it applies to the claim in accordance with section 56.

It is, therefore, the condition that requires claimants to agree not to pursue an amount greater than the value of the cap--moving up to $10 million by way of a Senate report amendment--to settle the claim before they are permitted to have the tribunal consider the claim to determine whether or not it is valid.

For years now, the Canadian Alliance has been objecting to the government's practice of passing incomplete legislation, what we might call fill in the blank legislation, bills that need to be fleshed out by the government after the bill has been passed, fleshed out somewhere other than in Parliament, where there are less eyes watching and where they are protected from much of the accountability process that is provided by the House.

I do not think that is an appropriate way to handle the issues in the bill. There are enough problems with this section already, as I have mentioned, without making the implications of the bill for first nations and taxpayers less clear by keeping those important details of the law out of the bill until after it has passed.

The same must be said for subclause 35(1)( d ), the waiver clause for the compensation phase of the claims negotiation process. We are not going to know all the rules that govern the cap until the governor in council finishes prescribing them behind closed doors, somewhere at a time and a place when they will not be subject to the scrutiny and the accountability of Parliament. This is simply undemocratic and it is another example of the current government's hostility to the principles of accountability and transparency.

I have discussed some of the most troubling aspects of Bill C-6 even in its amended form. What I have listed here is by no means an exhaustive list of the flaws that permeate the legislation.

When the bill fails, it will fuel the feeling of injustice and unrest among first nations across the country. It will put Canadian taxpayers on the hook for the cost of setting up and running the centre with minimal or no return on the investment.

Taxpayers will have to continue to pay the government's legal bills in addition to this claims body. They will have to pay those legal bills for the expensive court cases that will be launched in place of the mediated hearings that would take place in an effective claims commission and tribunal.

The first nations will continue their uphill battle to have legitimate claims recognized over incidents of injustice and maltreatment at the hands of the federal government and its agents in violation of historic treaty agreements.

Bill C-6, for a host of reasons, does not deserve the dignity of being passed by Parliament. It should be withdrawn by the government and then redrafted before being brought back to the House for consideration.

I have referred a number of times to the joint task force report that was put together with considerable work by individuals back in 1998. It has considerable bearing in terms of what the new independent claims body should look like. Therefore, I am going to be making comments regarding the joint task force report on the specific claims policy reform. This was submitted by the Assembly of First Nations and the specific claims branch of DIAND. I am reading from a reformatted version of November 25, 1998.

The report's table of contents gives us a way out of the morass, the delay and the lack of resolution we have had in respect to specific land claims. I will make reference to the many covering letters which go into some of the background on how we arrived at this point and why we need such a body. Some of the main themes are outlined, such as the JTF proposals, and some of the key features. It then gets into a discussion of some of the general issues: aboriginal rights, fiscal framework, the joint task force process and then the current status. And, of course, as with any of these reports, there are a number of appendices, charts and graphs.

I first will read a letter to the chiefs from Rolland Pangowish, the co-chair of the joint task force report. It is dated November 25, 1998. He says:

Dear Chiefs:

On behalf of the First Nations Task Force representatives, I would like to take this opportunity to present to you the Report of the Joint First Nations/Canada Task Force on the Reform of Claims Policy. This report reflects the painstaking and highly detailed efforts of the past one and a half years of cooperative efforts between the AFN Chiefs Committee on Claims, First Nations technical advisors and government officials from the Departments of Indian Affairs and Northern Development and Justice.

In introducing the JTF Report, I would like to offer my personal assessment that this exercise in partnership has succeeded by achieving agreement on what participants feel is the best technical approach for resolving claims. The recommendations set out in the proposal are based on the assumption that the goal is to resolve claims.

I think that is pretty basic and it is good they came to that understanding. He goes on to say:

It should be kept in mind that both sides had to give and take in this process in order to reach agreement on these recommendations. While there are certain aspects of the proposed process that each side would have liked to take a different approach, the proposal represents a minimum standard that each side thought their respective principals could live with.

Overall, in my estimation, this joint policy development initiative should be highlighted as a positive and productive venture in terms of its future role as a workable and highly useful means for addressing the many issues currently confronting the First Nations and the Crown.

It must be said, however, that many legal, political and financial questions were raised at the table for discussion. While the input from the Department of Justice was most helpful, the First Nation participants believe that any future refinement of these proposals should involve senior financial specialists from central agencies directly in the discussions. Had these key officials been active participants in our joint dialogue, they might have provided necessary expertise and assistance for us to achieve more timely solutions in key problem areas.

The Joint Task Force has now provided a highly detailed and focused blueprint for fulfilling the long-standing need for an independent claims body. The implementation of these proposals would represent an important step in addressing an important aspect of the RCAP Report. Although the Task Force could not address all the matters contemplated in the RCAP Report with respect to an independent claims body, we have attempted to design a process whereby the perception of conflict of interest would be eliminated.

The primary phase of the task that was mandated for the AFN by the Chiefs-in-Assembly has now been completed. The First Nations Joint Task Force technical representatives, under the guidance of the Chiefs Committee on Claims, has sought to ensure that this proposal is entirely faithful to the principles that have been set out for it by the First Nations political leadership.

In the next few weeks, we will be presenting this proposal to the Chiefs Committee on Claims and to the Chiefs at the Confederacy

On behalf of the Joint Task Force, we look forward to the opportunity for continuing to meet the challenge of ensuring that this proposal will one day form the framework for resolving conflicts between the First Nations and Canada. It is our anticipation that this proposal will provide a sound basis for a new, constructive and mutually productive relationship.

Sincerely,

Rolland Pangowish

Co-chair, Joint Task Force Report

The letter was carbon copied off to the appropriate individuals: the AFN executive committee, chiefs committee on claims, the joint task force members, the Minister of Human Resources Development and so on.

At the outset of the joint task force report there was a very interesting letter that I would like to read. I think the listening audience and members in the House as well will find it interesting. The letter was written by Dan Kohoko, the director of special projects, specific claims branch. He wrote it on Indian and Northern Affairs Canada letterhead and sent it to Mr. John Sinclair, the ADM policy and strategic direction, Indian and Northern Affairs Canada, and then off to Mr. Scott Serson, the deputy minister, Indian and Northern Affairs Canada. The letter reads:

The Joint Task Force, which Mr. Rolland Pangowish, Director, AFN Land Rights United, and myself, Director, Special Projects, SCB, chaired over the past two years, recently completed its work on what I would consider to be Phase I of our towards establishing an independent claims body.

For the record, we would like to table a report on the Joint Task Force (JTF) work, to which we have appended the actual product produced by the JTF in phase one; as well as a copy of both English and French versions of the legislative drafting instructions. The JTF work on the drafting instructions was basically completed when we met with AFN in October 1998. It was indicated at that time that a staged approach was preferred by the federal government.

As requested we held a meeting in Quebec City to discuss what a model that could be considered a staged approach might look like. The work to adjust the current drafting instructions to reflect such a model is what I consider to be the next phase of potential work for the JTF. However, before proceeding the JTF should receive direction from both First Nations and the federal government with regard to Phase II.

The letter was signed by Dan Kohoko, director, special project, specific claims branch.

We find again that the letter was forwarded off to the appropriate people: Warren Johnson, A/ADM, claims and Indian government, DIAND; Paul Cuillerier, DG, specific claims branch, DIAND; Dennis Wallace, associate deputy minister, DIAND: Daniel Charboneau, minister's assistant, DIAND; and, Rolland Pangowish, director, lands right unit, AFN. I simply add all those individuals who received it so nobody can claim it was not without their knowledge. This is public record and it has been read by all.

What we have where we say it is the JTF report embodied in Bill C-6 is hard to comprehend when in fact it is so obviously different from it and it does not take into account some of the very good recommendations that we find in the 1998 joint task force report.

I want to give some background and content though as we come up to the need for a specific claims body of some kind or other and what brought this particular joint task force together. In the preface of the report itself it gives some of that background. It states:

The Joint First Nations-Canada Task Force on Claims Policy Reform has been charged with addressing an important part of the new partnership the Government of Canada has promised will characterize its efforts to build a new relationship with First Nations. If this new relationship is to be based on mutual trust and respect, we must begin to address those things which have created mistrust.

It is well put from my point of view. The report goes on to state:

Obviously, an important part of this healing process requires that we effectively resolve outstanding grievances and address the need for an adequate land and resource base.

For many years, First Nations and others have called for the establishment of an independent body to resolve outstanding claims. The need to eliminate the federal government's perceived conflict of interest in resolving claims against itself has now been widely acknowledged.

Lots of people have seen the light on that one. The report continues:

The mandate of this task force was to provide a forum where federal and First Nations officials could cooperatively develop recommendations for the reform of Canada's claim policies.

The commitment to this type of process followed up on the federal government's Red Book commitment to work with First Nations to design a new independent claims body. This commitment was consistent with the recent RCAP Report recommendations and many years of similar recommendations by First Nations and independent observers. This commitment was further affirmed in the subsequent “Gathering Strength” and agenda for action polices of the federal government, which convey Canada's commitment to building a new relationship with First Nations, based on trust and mutual respect.

The Task Force is a technical table composed of regional First Nations representatives and federal officials from Indian Affairs and Justice. It began its work in earnest in the Spring of 1997 and has reached agreement on detailed recommendations with respect to the major elements of a new process for addressing what have come to be referred to as specific claims. We have now identified the required structures, basic procedures and required legislative--

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

Mr. Speaker, I assume we have moved on to Bill C-6 and we can commence from there. However I wonder if we could have quorum in the House first. I have some important things to say and wonder if that could be established before I commence my speech.

[Marijuana, October 31st, 2003]

Mr. Speaker, bad news about marijuana, violence and gang warfare is far too common. This week a gang-style double murder in Toronto was linked by police to the growing problem of marijuana and gang warfare in that city. This week a new poll shows that marijuana use is higher than tobacco use among teenagers.

The Liberal government discourages youth from using tobacco, but its proposed changes to marijuana legislation sends the opposite message. Canada's frontline police officers remain distressed over the Liberals' soft on pot, premature and seriously flawed Bill C-38.

The Liberals must first set up a national drug strategy that works at the street level. They must establish a progressive schedule of penalties. Minimum sentences are required to reinforce the seriousness of the crime of marijuana grow operations. Drug driving laws and roadside assessment must also be in place. The police need legislation to enhance enforcement powers in situations where drug impairment is suspected.

It is not clear what constituency the Liberal government is trying to attract with this new approach to drug legislation, but it certainly is not the law-abiding citizens in my constituency--

[Specific Claims Resolution Act, October 31st, 2003]

Mr. Speaker, thank you for your admission and concession. I appreciate the rules of the House and your diligent application of them in fairness to all of us.

As I was saying, cases take longer when they are dragged through the courts to no end. They have the effect of delaying the time when a final decision is brought down, postponing the time at which the government is required to pay out the claim for decision made in favour of the claimant.

We believe this kind of strategic stalling by the government is not an example of fiscal prudence. I am a fiscal conservative and I think taxpayer dollars have to be watched carefully and closely. When we drag it out through the court system, which is the other route to go, it serves no one. In fact it is very negative in terms of getting disputes resolved in a very difficult area.

Surely, the minister understands that this cap gives government officials much greater leverage for claims than is to be expected in the ballpark of $10 million. Let us use an illustration to make the point.

Take a situation in which the claimants believe their claim has a value of $13 million. In this scenario the government refuses to accept the claim and negotiations collapse. The claimants therefore have to decide whether to lower their demand to only $10 million in order to proceed to the tribunal or to insist on their demands for the full amount. In this case the claimants have to start from scratch all over again in the court system, drag it out to no end and add a great length of time. That is even if the band has the funds necessary to launch a court case.

This illustration demonstrates how the existence of a cap, and such a low cap at that, can greatly benefit the government victimizing the claimants all over again. In some of these cases it is quite heart-rending to read of how Indian agents took advantage of a first nation and pocketed the money themselves. There was great injustice. The first nations in an earlier time, in a different era, did not have the means to defend themselves and they were victimized. Now they are being victimized all over again.

Does the Minister of Indian Affairs and Northern Development really believe that this kind of policy is helpful in building a culture of trust and mutual respect between the Canadian government and first nations people?

There is another aspect to the cap, and I think it is a trap, that troubles me. It is not addressed by any Senate amendments, but it was discussed as an observation in its report to the House, and it was a topic of debate in the Senate.

The government could deal with the matter if it chose to do so by amending the Senate report that was delivered to us rather than simply accepting the Senate amendments as written. The troubling aspect of the cap revolves around the fact that Bill C-6 requires a claim to be heard twice by the commission and by the tribunal if the claim cannot be resolved through the commission.

It first has to go through a validity phase which is designed to determine the validity of the claim. After that claim is deemed valid, if the government decides to negotiate it or if the tribunal rules that the government must negotiate it, the claim then has to go through a similar process to determine compensation.

What is astonishing to me is that $7 million, or if we take the Senate recommendation to amend it to $10 million, that cap, whatever it is, applies to both stages. In other words, just to have the tribunal determine the validity of a claim prior to any consideration of the value of compensation that might be determined through compensation related negotiations, the claimant is then expected to waive the right to a payout higher than $10 million.

There is absolutely no good reason why the potential value of a claim should have any bearing on the right of the tribunal to consider it for the purpose of determining its validity. That is another question. The validity and compensation amount are so interwoven, so inseparable that I think it does hurt the process.

Requiring a cap at the validity stage of the process greatly weakens the potential usefulness of the proposed claim centre. Since the bill clearly separates these two parts of the process, it should be relatively easy, we would think, to eliminate the cap requirement for the validity stage. Is it valid or is it not? Let us not get into the issue of the compensation at that point, but is it a valid claim?

In committee the Canadian Alliance introduced an amendment that would have done that but, unfortunately, there was no intelligent discussion of the amendment nor any give and take. There might have even been some adjustment on our part to hear some wisdom in respect to that, but it was just summarily swept aside.

In the Senate, the hon. Nick Sibbeston, an aboriginal senator who was supporting the bill, indicated that this matter was raised with the government by the Senate committee examining the bill. According to Senator Sibbeston, the response the committee received was to this effect. He said:

--the government sees the situation as putting a system in place. No one is perfectly sure how it all will work--

I admit that because that is the way it is with most bills. He goes on to state:

--and it wants to see how the system works before it makes more improvements.

The last part is the telling part. The government will use this as a guinea pig, a trial and error kind of system, not having any sense of the degree to which it will be effective and how it will work before it makes more improvements.

What kind of answer is that for the government to say that it is the government and therefore it will give it a shot. It will simply see what kind of mistakes there are, what kinds of messes are left and then it might take a look at it later. I do not know if this is too strong a word but I think it is a bit of arrogance when that attitude is taken and it oozes from the remarks in that statement.

What is wrong with the government in this respect? Has it lost its ability to think clearly and seriously consider reasoned amendments from others around the House? All wisdom does not reside in any one party. It does not reside on the government side or any party on this side. I would be the first to admit that but why does the government have to assume that it is all on its benches?

Has it lost any interest in developing effective, responsible, workable legislation? That is the role of members in this place. The role of the opposition is to constructively and positively go after these things and try to get a better piece of legislation and a better result.

If the government cannot defend an aspect of its legislation, but only say that it will try it out and see what kinds of messes and problems we have, what on earth is it doing here? If it does not have a reasonably good sense or projection that it will work, and that is the only response when questioned in respect to the perceived flaws in the bill, then what is going on in this place?

I want to read into the record the brief statement that the Senate made on this aspect of the bill because its observations following committee hearings are very instructive. It states:

The Committee frequently heard, both from First Nations and neutral observers, that the requirement for claimants to waive their rights to compensation above the specified cap (as set out in Section 32) in order to obtain a Tribunal ruling on the validity of their claim was the single most significant flaw with the Bill. The government expressed concern that removing this requirement would pose undue and unpredictable financial risk and might imbalance the overall operations of the Commission and Tribunal. Given the safeguards built into the legislation (Section 71), this seems to reflect an excessive concern with risk aversion.

That comes right out of the brief statement that the Senate made on this particular aspect of the bill. Those are not my words. Those are not the words of a possibly perceived partisan individual. Those words come from the Senate's report on this aspect of the bill. It says that it is the single most significant flaw in the bill. Those were not the words of the Assembly of First Nations, a member from the opposition side, some other native group nor somebody with a bigger axe to grind. The senators are telling the government that imposing the cap at both stages of the claims resolution process seems to reflect an excessive concern with risk aversion.

Let me continue from the Senate report. It states:

We are concerned that the financial cap on validity will create two categories of claims within the system and could create a significant impediment to the settlement of larger claims.

The committee then explains its views by saying that an incremental approach in this area may be better, which is why it recommends including it in the three to five year review of the bill rather than making it an amendment at this time.

I do not see any reason to wait to amend this section of the bill. If all kinds of groups saw it as the single most significant flaw in the bill, the Senate included, then if it remains in the legislation how will it encourage an atmosphere of trust and mutual respect surrounding the specific claims resolution process?

I want to stress that the first nations have indicated that without the potential for a tribunal to issue a binding decision on a claim, the government lacks the incentive to process the claim in an expeditious manner. We can see clearly their lack of confidence in this new system.

The claims centre proposed in Bill C-6 is seen as useless in terms of dealing with claims that are valued higher than the very minimal cap that is being proposed in the bill. If the cap is going to remain in the legislation it should be increased, as we suggested in committee, to at least $25 million and should be removed altogether from the validity stage of the claims process. That is another issue: determining the validity, looking at the evidence, looking at the historical facts and so on to determine the validity of the claim itself.

The Senate also made a couple of amendments that would allow for some input from first nations in the appointment of the commissioners and the adjudicators for the centre, as well as for the agency's chair and for the vice-chair. This amendment affects clause 5, clause 20 and clause 41 of Bill C-6. Specifically, first nations would be able to “make representations in respect of appointments to the office or offices in question”.

In other words, after the Minister of Indian Affairs has made his appointments, first nations representatives can provide input as to their thoughts about the people who have already been appointed. That is about as backward as it can get. It is a process that happens in our country maybe far too often when the PMO appoints individuals and then we have our chance to fire away, but what good does it do after the fact? We would like that in a whole range of things, in respect to judges and some of the other appointments where they are vetted through the appropriate standing committee, before not after.

What good does it do if the appointment is made and then after the fact we get to write letters and e-mails that go in the wrong files? We get to badger away and play it up in the media if they have an interest at that point because it is a done deal.

This is very disrespectful and not at all helpful when we just simply allow them after the fact. It is already a fait accompli and at that point then the first nations representatives can provide input as to their thoughts about the people who have already been appointed. What a useless, senseless thing to do in the bill. What good would it do when the person is appointed and already in place?

This is certainly a far cry from what was proposed in the 1998 joint task force report produced by the government and first nations following several years of discussions. I want to spend some time later reading large sections of that report. The government spent three years negotiating with first nations, the back and forth, the give and take, around the table together. Some rapport, some mutualities and some respect I assume was built up over that time. They spent some three years coming up with a plan for dealing with specific claims.

The report from the joint First Nations-Canada task force on specific claims policy reform reiterated the longstanding recommendation for an independent claims centre, this being a fair bit of writing to which we can look at and refer to in respect to the independence of this bigger claim centre.

The primary mechanism by which it was going to be made independent was by a joint government first nations process for appointing the commissioners and adjudicators. That was in the report. Both parties were to arrive at a list of jointly approved candidates and the government would pick the commissioners and adjudicators from that list. It seems like a fair process. It seems like common sense.

The government, however, has completely abandoned that proposal. In Bill C-6 the government has the exclusive prerogative of appointing the officials and then reappointing them. Others in the peanut gallery can make comments and decry or deride these particular appointments but the government has the exclusive prerogative to increase or reduce the number of commissioners or adjudicators within, of course, the parameters provided by the bill. The Senate amendment does not change that process. Its amendment is nothing more than window dressing.

In response to demands for more first nations participation in the appointment process, government spokesmen object that there is no precedent for the government sharing the responsibility of making appointments, whether we are talking about judges or officials who serve on quasi-judicial tribunals or government boards. They say the government must preserve the final authority over such appointments, including to the specific claims agency.

While it might be true, whether we are talking about judges or other appointments, that there is no kind of precedent in our country, that is unfortunate. There is a precedent in other modern democracies around the world. Our neighbour to the south of us, just beyond the 49th parallel, has a very good process where there is that greater scrutiny, that greater look at individuals coming forth, because their background, their biases, their world view, their perceptions and so on are all pretty significant in terms of how they will handle that job and the degree of objectivity or lack thereof that might be the case. Just because we have never done it that way is not to say that might not be a considerable improvement. As we look at other places around the world where it is already in place, we think it actually allows the public to have a greater say and greater access to the process.

The government is confusing the issue with such an assertion that it has never done it that way before. I do not dispute the government's prerogative to have, and we will even concede, maybe the final say in making appointments, but the proposal recommended in the joint task force report does not take away that prerogative from the government. I still do not understand why the government has refused to implement that very reasonable proposal in Bill C-6.

The joint task force proposal gives the government the final decision on appointments to the specific claims resolution centre but it also gives first nations direct participation in the appointment process. That is a far cry from the paternalistic tokenism reflected in the Senate amendment, not to mention the complete shutting out of aboriginal input that was established in the unamended bill.

When we read the Senate debates on Bill C-6 we will hear critics of Bill C-6 repeatedly raising the question of the independence of the specific claims resolution centre. Defenders of the bill repeatedly assert that the centre was as independent as one could make it in our political system, which is not saying a lot, and in respect of the fiduciary responsibilities the federal government has toward the first nations across the country.

Critics, however, remain unsatisfied with the government's assertions, warning that the centre could not and will not win the trust and the confidence of first nations people.

I do not dispute the point that making this centre independent, not to mention giving it the appearance of independence, is a challenge, admittedly so, but what is clear to me is that the government is not up to that challenge, not at all. It is not even coming close. It is not even attempting to give it the perception of any kind of independence here. The government is not up to the challenge, as would appear in the report from the Senate back to us and the intent of the government as it bulldozes ahead on this particular piece of legislation.

Proposals to help give the centre independence and the important appearance of independence are staring the government in the face from the pages of the joint task force report and the amendments proposed earlier by the Canadian Alliance, yet the government is completely ignoring them.

I will have to wrap it up as time runs out, but I assume that I begin to speak at the point where we resume with Bill C-6 in the future. I have much to say and I am just getting warmed up and getting into this crucial topic.

[Specific Claims Resolution Act, October 31st, 2003]

Mr. Speaker, are you sure that applies in respect to the first opposition speaker of the day?

[Specific Claims Resolution Act, October 31st, 2003]

Mr. Speaker, I am rising to speak to Bill C-6, an act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts.

This means that the bill before us today is designed to set up a permanent centre to evaluate specific claims brought against the federal government by first nations across our country. An Indian claims commission already exists, as most of us are aware, but it was put in place some 12 years ago, back in 1991, as a temporary measure, just like our taxation and many other things. It has lasted this long and now there is an attempt to put something together in a different fashion. This proposed centre for resolving first nations specific claims is supposed to replace that temporary commission of some 12 years ago.

For the most part, as my colleague across the way mentioned, specific claims deal with outstanding grievances that first nations have regarding Canada's fulfillment of its obligations under historic treaties or its administration of first nations lands or other assets under the Indian Act. That of course is in contrast to more comprehensive claims, substantial land claim treaties such as Nisga'a and Delgamuukw, which have been debated at length in the House over the last number of years. There is a difference with these claims in the fact that they are outstanding grievances in terms of their reserve lands not being handled by or being sold off by an Indian agent with funds being pocketed by that individual, or other things of that nature.

The House has already considered the bill, but now the Senate has sent it back to us and is reporting suggested amendments. The Senate examined Bill C-6 and found it to be unsatisfactory as it was written. Most of us on the aboriginal affairs committee had some sense that there were some major concerns around some things and probably some flaws in the bill. It comes as no surprise to those of us who served on that committee that the bill has come back from the Senate with some suggested amendments, but we do not think they go far enough.

In what was often a very passionate debate in the other place, both Liberal and Progressive Conservative senators condemned the legislation. They even tried to kill it with a hoist amendment. These senators observed all of the most serious flaws in the bill, which had already been noted by members within the committee, by myself and, in the House, by the Canadian Alliance before the bill went to the Senate.

As a result, after its scrutiny and examination, the Senate has proposed several amendments to try to improve the bill, as was mentioned by my colleague across the way. We think there is some partial merit to them. That would be faint praise, I suppose, in support of these amendments, because they go only a small way in an attempt to mitigate or improve the worst aspects of the bill. Unfortunately they do not go far enough, so we continue to oppose the bill itself.

In the Senate, a hoist amendment was introduced during third reading debate after the amendments had been tabled by the Senate's aboriginal peoples committee. We can see, then, from the public record that even with these amendments, this particular bill still generated strong opposition. In fact, the bill generated much more debate than the government expected, so the Liberals resorted to the use of a time allocation motion to terminate debate.

We have become quite familiar with that anti-democratic tool in this place. It has become a very popular weapon in the hands of governments and of this government in terms of using closure an unprecedented number of times, but for the record and for the viewing audience, it is rarely used in the other place. It is rather uncharacteristic to use closure in the Senate.

The disgust expressed against the government for stooping to such tactics in that place came not just from the opposition members in the Senate but also from Liberal senators. That is another experience that we in this House are unfamiliar with, as often protest or outrage is not expressed by members on the government side when closure is being used in the House of Commons.

My point in recounting some of these events that happened in the other place is to demonstrate that the Canadian Alliance is joined by many others of different political and cultural persuasions in our opposition to this government bill. That opposition to Bill C-6 is across party lines, across cultural lines and from aboriginals and non-aboriginals.

To show how obstinate the government is, it bulldozes forward with this agenda in the face of widespread, reasoned opposition. I believe it is another example of how the government has not been listening as it should. Maybe the majority it has in the House is far too large. Maybe there is too big a gap and it needs to have its feet held to the fire a little more.

In committee, we had some very reasonable amendments that were dismissed and summarily swept aside. That does not sit well with members of a committee who carefully thought through these things, had discussions and listened to the testimony and so on only to have it just simply batted aside as being of no account, with the bureaucrats and the department saying that they knew what was best and they were just going to ram this thing through come hell or high water, that it did not matter what we on the committee said.

A government that gets to the point where it figures it has all the answers and is arrogant and unresponsive to the needs and circumstances of real people is a government that will not be bringing forward the kind of legislation we need. Its legislation will be badly flawed and marred. To say that it will be imperfect is an understatement.

As a result, a lot of the House's time is wasted on badly drafted legislation that does not suit the purposes, has a cosmetic and very superficial effect and is not for the good of the individuals directly affected by the bill.

Initially I was prepared to say I was pleased that some amendments have been made to the bill and that the minister has condescended to accept them, but I am not even sure that I am pleased with this situation. A couple of the amendments might have some consequential impact, one might say, on the specifics claims process. I will come to that in a moment.

We believe that others, like increasing the tribunal cap from $7 million to $10 million, are little more than tokenism in terms of the real substance of the issues involved in this particular bill. That increase from $7 million to $10 million came by way of the Senate report to the House, by the way.

It has been some time since this bill has been before us, seven months to be exact, so I want to remind the House of what Bill C-6 proposes to do in establishing a specific claims process. Then I want to go on to discuss some of those Senate amendments and how they relate to the concerns we and others in the committee process have raised about Bill C-6.

Bill C-6 would set up a claims resolution centre made up of a commission and a tribunal. A first nation could file a claim with the commission. If it were to meet the terms of an “admissible claim” for the purposes of the commission, the claim would then be submitted to the Minister of Indian Affairs for his consideration. The commission would then convene preparatory meetings to help the claimant present its case to the minister. Upon completion of this phase of the process, the commission must suspend proceedings until it receives a written response from the minister as to whether or not he will even consider to negotiate the claim.

One of the major flaws in this is the fact that the minister is not given a deadline of any kind with respect to making his decision. I think there might even be an admission from the government in its heart of hearts that this is a problem; in a quieter moment, off to the side, not in this more contentious atmosphere, this more partisan place, I think there might be an admission. It is a major problem. It is a recipe for stonewalling, for obfuscation and for never getting back. It is really very unfair.

In a court of law process or in any other kind of procedure across the country one would assume that at some point there must be deadlines. They might be protracted and extracted and long, but there must be some kind of deadlines. None of that is here for the minister and we think there is very major problem with that. It is not justice. It is not even the norm in respect to other contexts in our country.

If the minister were to decide not to negotiate the claim, the commission would sit down with both parties in an attempt to help them resolve the question of the validity of the claim, using alternative dispute resolution mechanisms. If that process did not work, then the claimant could request that the case be sent to the tribunal, but only if the amount of the claim did not exceed $7 million, or $10 million if the House accepts the Senate amendment to that effect.

If the tribunal were to decide that a claim was valid or, if at the earlier stage in the process the minister were to decide that he would negotiate the claim, the commission would then have to try to help those two parties arrive at an agreeable amount of compensation.

Again, if the compensation question could not be resolved by the commission, the claimant could then make an appeal for the tribunal to hear the case, but only if the compensation being demanded by the claimant--and this is the kicker--did not exceed, in the case of the Senate amendment, $10 million. The tribunal then has the power to make a binding decision after it has heard the case. The government, however, can request a judicial review of the tribunal's decision.

The goal behind this bill, or at least what we are told is the goal behind this bill, is to expedite the process of resolving specific claims. Between 1970 and March of last year, Indian bands across the country had filed 1,146 claims. Only 232 had been settled. That backlog is terrible and it is only getting worse. It is not diminishing, with both the government and first nations, I would have to say, becoming increasingly frustrated with the current system.

Unfortunately, as I made mention of earlier, Bill C-6 is not the legislation that we need to solve the problem. In fact, the mechanisms proposed are likely to make matters worse. Liberal senators were very forthright, more forthright than government members in the House, when it came to acknowledging the imperfections in this particular bill, but those commissioned to push this bill forward essentially said that it is better to pass a bad law than no law at all.

I do not think I have ever known people as passionately committed to mediocrity as those in the current government, which says that it is better to get bad bills through than no bills at all. I do not buy that and I do not think a lot of the public does, because it then creates messes that have to be cleaned up thereafter.

Liberal Senator Anne Cools put it very well during debate in the Senate when she stated:

Honourable senators, I want you to know that we sit here again and again and feel compelled and driven by governments to pass bad bills or insufficient bills or inadequate bills.

I want to repeat that because I think it bears repeating. Senator Anne Cools, who is a Liberal senator, stated:

Honourable senators, I want you to know that we sit here again and again and feel compelled and driven by governments to pass bad bills or insufficient bills or inadequate bills.

Rarely if ever is it appropriate, in my view, to pass a bad bill rather than no bill at all. Even aboriginal people, those whom the government claims it is helping by implementing this legislation, are telling the government that it is better to fix this bill than to pass it in its current form. That is the message the government has heard from the Assembly of First Nations as well as many individual bands. That is also the message the government heard from three of Canada's five aboriginal senators, all of whom are government members, as well as from Senator Gerry St. Germain, a Canadian Alliance senator who counts Métis as part of his ancestral heritage.

The Hon. Charlie Watt from Quebec, one of Canada's aboriginal senators, in reference to urging from the government to pass Bill C-6 as it began to turn up the heat and tighten the screws, stated this with regard to Senator Austin saying that action is needed now:

Maybe action is needed now, but is this the right instrument that we are providing to the aboriginal people? Will it advance the rights of the people? I don't think so

The Hon. Aurélien Gill, another aboriginal senator, made similar comments, stating that:

It became clear in committee that National Chief Phil Fontaine [the new head of the Assembly of First Nations] is urging the government not to pass this bill, but rather to discuss it further. Peter Hutchins, an expert, told us: “Wait, take your time; there are some major issues in this bill”.

The fact that the Senate sent Bill C-6 back to the House with amendments is actually a good thing. It gives us one last chance, one might say, to fix it properly before the government passes this particular piece of legislation. The House can accept the Senate's amendments or reject them or amend them. The government is recommending that we just simply accept those recommendations and breeze on through, but my party and I do not believe that is the right solution. Rather, this House should amend those Senate amendments, strengthening them even further and adding to them before sending the bill to the other place and before sending the bill to the Governor General for royal assent.

Let us take a few minutes to look at some of the specific amendments proposed by the Senate. One of those amendments would raise the cap for cases that can be heard by the tribunal from $7 million to $10 million. This deals with clause 56 of the bill. This cap is the maximum award that the new claims centre is permitted to authorize for any single claim.

In light of the figures we are dealing with when it comes to specific claims, increasing the cap from $7 million to $10 million is ridiculous. It is almost not worth the effort. We proposed in committee a cap of some $25 million.

If there is validity to the claim, and if they do not deal with some of the railway claims in B.C. and so on, then on average they are more than this. We think it is cosmetic, it is superficial, it is just on the surface and really not about the business of getting a better result for things here.

The Minister for Indian Affairs and Northern Development has claimed that the $7 million cap has been set high enough to conclude most specific claims. At least that was the argument made at the earlier stage in committee when we had it before the House. Yet in a footnote to its legal analysis of Bill C-6, the Assembly of First Nations notes that AFN technicians have been informed by Miss Kathleen Lickers, commission counsel for the Indian Claims Commission, that of the 120 claims the ICC has dealt with, only three have been settled for less than $7 million. The AFN analysis adds that in the past three years, from 2000 to 2003, 8 of the 14 claims paid out by the federal government were for amounts about $7 million.

The Assembly of First Nations acknowledges:

It is true that in the earlier period from 1990-91 through 1999-2000, a majority of payouts actually were for less than $7 million; but there is no reason to believe that this earlier record of relatively low settlements can be projected forward.

Some of these, as I said, reflected claims regarding railway land, and it was all small stuff. However, we could add up the numbers and say that we go through ICC a lot of claims, when in fact it is all small potatoes and there really is not a lot of stuff in dispute.

There is no reason to believe that this earlier record of relatively low settlements can be projected forward into the future. There was likely bias in the system for settling smaller claims, and without reports to an independent tribunal, first nations were in a very weak bargaining position.

Interest on the value of claims will also increase their value through time. If inflation is worked into it, then we have problems that are not taken into account by the cap, even in the amended cap that the Senate has suggested.

I have heard recommendations from first nations representatives calling, as a bare minimum, for an increase to the cap to anywhere from $14 million to $30 million, to enable the centre to hear the majority of current claims.

I introduced an amendment when this bill was being studied by the aboriginal affairs committee to increase the cap to $25 million. I thought it was a reasonable one. After all, this is about getting it out of the very expensive, drawn out court system for the government. These people do not work for nothing and lawyers bill on a pretty good rate per hour. It is costing our taxpayers a considerable amount of money.

If we can get the right mechanism and the right kind of a claims centre together, such that there is a perception of independence, then we can save taxpayers a considerable amount of money. We will actually do service to the aboriginal peoples as well.

Some people might be concerned that making the cap higher is fiscally irresponsible because it will commit the government to greater fiscal obligations than would be the case with a lower cap, but really that is not the case. The government has dealt separately with the question of how much money is available annually. It is a different issue. It has already set an amount. It has already indicated what is available annually to distribute to the claimants who have won their cases.

As well, the claim centre does not increase the number of claims before the government. It simply provides an alternative process for hearing them. Whether they were heard in the courts or resolved through this commission and tribunal, if the judges or adjudicators found in favour of a claimant, the government would be obligated to settle in either case.

Cases take longer and cost more when dragged through the courts, having the effect of delaying the time when a final decision is brought down and also postpones the date at which the government is required to pay out a claim for a decision made in favour of the claimant. Therefore, the imposition of a cap on the tribunal looks more like a strategic stalling tactic by the government rather than as an example of fiscal prudence, and I think members have commented on that.

I would think independent objective observers would say this is a recipe for disaster, a recipe for stalling by the government. The imposition of a cap complicates things and undermines the great thing we are trying to achieve by way of an expedited process.

The cap also looks like a stalling mechanism when examined from another perspective. The minister of Indian affairs has tried to play down the significance of the cap by noting that it only applies to the tribunal and not to the commission. In other words, it will only be applicable for screening out claims that cannot be resolved by the commission and therefore might be brought before the tribunal for a binding decision.

I thought I had unlimited time, Mr. Speaker, with respect to this matter.

[Agriculture, October 24th, 2003]

Mr. Speaker, inconsistent foreign restrictions on the importation of beef products have caused great harm to Canada's beef industry.

The Liberal government has been unprepared for this problem and since the worst has occurred, the government has taken minimal and inadequate remedial action.

What is needed is for the government to immediately institute internationally recognized protocols. We need to replace damaging political posturing relating to borders with sensible, agreeable rules for all concerned.

Farmers in my riding are not simply experiencing a slowdown in their business, they are going under. For many of them, this is the most disastrous time of their lives and the most distressing time for their family members. But the government has remained virtually silent.

We cannot even say that the government is missing in action because the government is really not a part of the action.

Cattlemen across the country have given up hope that the Liberal government will do anything and have had to take it upon themselves to deal with U.S. officials directly.

[Criminal Code, October 23rd, 2003]

Madam Speaker, Bill C-416 brought forward by my colleague, the Canadian Alliance member for Portage--Lisgar, is a good bill and it is an attempt to restore equality in the sentencing principles of the Criminal Code and the Youth Criminal Justice Act.

Presently the Criminal Code and the Youth Criminal Justice Act include sections that instruct sentencing judges to “pay particular attention to the circumstances of aboriginal offenders”. These provisions can result in more lenient sentences for offenders based on race.

To sum it up for our viewing audience and for members who have just stepped into the chamber, the bill would remove that race based sentencing instruction in the Criminal Code and the Youth Criminal Justice Act and restore equality to our justice system.

Sentencing reforms adopted in 1996 created that two tier justice system; one for aboriginal Canadians and one for non-aboriginal Canadians. These reforms in the view of many of us actually stigmatize aboriginal Canadians by creating the false impression that they are more likely to commit crimes because of their race.

It is true that there probably is a greater percentage of native, aboriginal and first nations people in jail but that is not because of their race. It is because of other conditions that definitely and clearly need to be addressed, issues of poverty, family instability, low education rates and so on.

However this reform, which was instituted in 1996, actually creates the stigma that someone is an aboriginal person and because of that, the person is more likely to offend. As well these sentencing provisions in my view fail to acknowledge that the victims of crime committed by aboriginal offenders are usually aboriginal also. Aboriginal victims should have the same right to justice as non-aboriginal victims.

On December 21, 2001, RCMP Constable Dennis Strongquill, himself an aboriginal person, was murdered in the line of duty by Robert Sand. It was a brutal murder. Mr. Sand's lawyer argued that he should receive a more lenient sentence because he was an aboriginal and so we had justice at least argued to be denied, by that judge, to six fatherless children, which was something perpetrated against another aboriginal person. Imagine how his wife and six children feel about the murderer of their father getting off light because he is aboriginal.

Discounted sentences come at a high price. When the Liberals introduced these amendments, it was obvious that they chose criminals over the victims. These sentencing provisions deny aboriginal victims the full and equal protection of the law.

I have another story from the Montreal Gazette . It tells about one of the scariest nights of a particular aboriginal woman's life when two men went on separate drunk shooting sprees in her community of Mistissini, 90 kilometres northwest of Chibougamau. It goes on in the story to talk about the fright that took place. After it was all over, police chief Blacksmith said that the real problem was the justice system. He said:

We're not getting the appropriate sentences for these guys. Every time we bring someone in on serious charges, they're back out again in a few months.

Chief Blacksmith is a Cree who has lived on that reserve for more than 30 years. He points back to a 1990 Supreme Court ruling requiring judges to consider background and other social factors in sentencing aboriginal offenders. He said:

They always bring it up to get a more lenient sentence. It means we end up babysitting all sorts of serious offenders.

My colleague's intent is to put some equality back into the justice system. In particular, victims are victimized all over again by the very lenient or lighter sentences without the seriousness of the crime taken into account and the kind of treatment delivered or dished out by the individual who has offended and has committed that very serious offence against another aboriginal person.

We who are in the Canadian Alliance support the bill. There should be due consideration for the bill in the House. In the meantime we have a kind of racism in that we are not giving proper justice to aboriginal people based on their skin colour. That is clearly wrong.