Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 13 - Evidence
OTTAWA, Wednesday, April 30, 2003
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-6, 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, met this day at 6:27 p.m. to give consideration to bill.
Senator Thelma Chalifoux (Chairman) in the Chair.
[English]
The Chairman: I would like to welcome Rolland Pangowish and Bryan Schwartz from the Assembly of First Nations who are our very first witnesses on Bill C-6.
Please proceed, gentlemen.
Mr. Rolland Pangowish, Director, Lands & Treaties Unit, Assembly of First Nations: What we intend to do this evening is give you a technical background and overview of the bill from the perspective of the Assembly of First Nations. Of course, we have been deeply involved with this issue since 1990.
I wish to give a brief overview of what kind of work has gone into this issue of specific claims since that time. Mr. Schwartz will go over the legal assessment we have done on the bill, which was prepared by him.
First, I want to talk about the process. We appreciate this opportunity to provide some technical grounding for the committee in terms of this issue because we were disappointed with the process that took place at the House of Commons. I say that because the minister met with our national chief and the chairman of our chiefs committee on claims, Mr. Bill Erasmus from the Northwest Territories. He assured us that although he could not share the bill with us before it was released, he said in order for us to get a look at it he would have to introduce it into Parliament. He then said we would have ample opportunity to address our concerns.
Unfortunately, our experience with the House process was not very impressive to our First Nations across the country. A total of eight hours of evidence was provided by First Nations witnesses, which was very short. We have a list for you of some 30 First Nations groups who were not permitted to address the House committee. This was disturbing in light of the commitments that had been made to us.
For us, the bill has some serious shortcomings. We happened to be the last ones to testify before the committee. On that day, not all members of the committee were there, which we understand can happen. Five minutes after we were finished all these Liberal members showed up all of a sudden and voted on what resolutions would be considered, et cetera.
The following Tuesday, there was consideration of the amendments. There were 40-some amendments. I have brought to the clerk copies of those amendments proposed by opposition parties in the House. That must have lasted hardly more than two hours. There was no consideration or discussion of them. What was disappointing for the First Nations who were allowed to testify was that the evidence did not seem to be taken into consideration at all.
I say that was disappointing, especially in light of the minister's comment to us that we would be able to address our concerns. We did not see where our concerns with the bill were even taken into consideration. This is of even more concern because our concerns with the bill are not just partisan or biased in nature. We have talked to many independent experts who have reached many of the same conclusions we have with regard to the bill.
What I have brought to the table today is the letter that our national chief sent to the House leader, the Honourable Don Boudria, regarding our concerns with the parliamentary process and the democratic procedures of Parliament.
The Chairman: Mr. Pangowish, could we get copies of that letter for members of the committee?
Mr. Pangowish: Yes, I will table it with you. I have a list of the First Nations who requested to appear before the House committee. Something in the order of 30 were unable to be accommodated.
In the package I sent to you are the letters and band council resolutions regarding Bill C-6, which were sent to the minister, the Prime Minister and various federal bodies.
The Chairman: Do committee members want copies of that?
Mr. Pangowish: I will sort everything out with the clerk after the committee adjourns.
The Chairman: Perhaps I can ask for consent to file these as exhibits. Is it agreed, honourable senators?
Hon. Senators: Agreed.
Mr. Pangowish: In closing on the process issue, many of our First Nations had sent in band council resolutions to the minister regarding their concerns about Bill C-6. I have talked to Chief John Martin from a Mi'Kmaq band in the Gaspé region of Quebec. We were not copied on the letter but he sent it to us. Many of the points the minister is making about the bill are exactly what we will be refuting because, in a way, it is supposed to be a response to First Nation concerns.
What concerned us most was that he was inviting submissions of names of qualified individuals for consideration as commissioners and adjudicators, as well as for the CEO. The bill has not been passed. We were presuming it will be at this point, but he has already invited the suggestion of names. Obviously, as you will hear, one of our concerns is about the appointment process for what is supposed to be an independent body. I will get into that later. This is what we were going to table with you in respect of process.
We hope we will get a fairer hearing before the Senate and some thoughtful consideration of the concerns we will be putting forward. That is very much why we appreciate this opportunity to provide a technical background. Our national chief will appear later and give you the political background. Although I may sound political, the points we will make are technical issues that we have to address.
This is a long story in terms of specific claims. As some senators may be aware, there was a proposal for an Indian Claims Commission back in the 1940s. It died. In the 1960s, under the Diefenbaker government, there was a proposal that died on the Order Paper. You will probably hear this from other witnesses as well,
Of course, legally and intellectually, as a country we have advanced further since those days. We now have constitutional provisions, et cetera. Any of those past proposals would have to be viewed in that light.
The existing claims policy with respect to the negotiation of specific claims was first established in the early 1970s. As you know, specific claims relate to the government's administration of Indian lands or other assets, such as trust accounts, specific provisions of statutes and treaties. Non-fulfilment or violations of those requirements are from where specific claims arise. They are not about general rights issues. They are specific, lawful obligations that generally represent liabilities on the Crown to First Nations. I am not here as a legal expert. We have our legal counsel with us.
These issues go back to 1984 with the Guerin decision of the Supreme Court of Canada, which involved the surrender for lease of a golf course of Musqueam Indian lands. In that decision, the Supreme Court of Canada began to articulate a concept with which we are now familiar. I refer to fiduciary duties. Two types of fiduciary duties have since been defined. One I often refer to as the Guerin-type, which is what we talk about in terms of specific claims. The other is the fiduciary responsibility with respect to Aboriginal and treaty rights and not to infringe upon those rights.
In terms of specific claims, from the early 1970s until 1990 there were a total of 44 specific-claim settlements. In the summer of 1990, we had the confrontation at Kanesatake, otherwise known as the Oka crisis of 1990, which brought to the forefront this issue of federal claims policy. At that time, Minister Siddon put out a press release. This is part of the background material I brought for you. It described the federal claims policies as if they were effective and that the government has been doing this. We immediately issued a critique of federal claims policies. In the analysis of the federal communiqué of the federal policies we put out a paper called the double speak of the 1990s, which was a point- by-point comparison of the federal communiqué on its claim policies and the First Nations perceptions where we identified the problems with policy quite clearly.
Subsequently, Minister Siddon asked the then Indian commissioner for Ontario, and Chief Manny Jules, who was chief of the Kamloops band at the time, to pull together a group of chiefs to identify solutions to the problems we identified. At that point he had to admit there were problems with the policy.
In the fall of that year, we managed to pull together a consensus within a period of two to two and a half months, and a position paper was put forward to the minister of the time. It was called the First Nations submission on claims of 1990. There were 30-some recommendations in that paper. Basically, they were principled recommendations about process being independent, consistent with the case law and taking into account those cases. First Nations were so frustrated because they did not see where the case law developments were being applied by government in policy.
There was a whole range of recommendations. The reason I point that out is because those recommendations were fundamental. They inform much of this discussion that has taken place since.
For example, one of the recommendations in 1990 was that the settlement of claims should not be a budgetary item. Prior to the mid-1990s, when the budget was introduced subsequent to our recommendation, specific claim settlements were paid directly out of the contingency reserve fund because they were viewed somewhat as legal debts that were not part of a budgetary plan. We were opposed to a budgetary approach because we felt that these were legal debts and court decisions are not budgeted, et cetera — they are legal obligations. We felt strongly that it should be directly out of the contingency reserve fund and that there should be no delay unless some agreement was reached as to how these would be paid.
I use that as an example because, when we put forward a recommendation, we received the opposite within a year. Hopefully, you can understand some of the scepticism on the part of First Nations when it comes to dealing with these matters.
Prior to that, there is a paper, of which we have provided copies to the members of the committee, by the former Justice La Forest. In 1999 he prepared a paper for the office of native claims on this very subject. There is one point that we wanted to make about that paper. Former Justice La Forest stressed that any administrative process to resolve these claims must be not only fair but also seen to be fair by the Indians, as he put it at the time. That is an important point. Former Justice La Forest is well respected as one of the former Supreme Court Justices.
The Chairman: What year did he render this decision?
Mr. Pangowish: In 1989.
He stressed that in a couple of points in the paper, which is what struck us the most about it. With Bill C-6 we face proposed legislation that is certainly not perceived as fair by the First Nations. We do not believe, from an objective assessment, that it is independent, more efficient or more effective. We will not settle more claims faster and there will not be a sense of fairness about the process. We will go into that and tell you why.
I wanted to give you this background because we are not coming to this table new, so to speak — we have a lot of experience. We wanted to convey some sense of that experience that First Nations have across the country because, following the Oka situation and the 27 recommendations of the First Nations submission on claims, Minister Siddon met with the chiefs in January of 1991 in Toronto. At that time, he said that these were good recommendations but we could not possibly do this all at once. He said that we would have to take this in incremental steps. Shortly thereafter the government came out with its four pillars policy, one pillar of which was specific claims and there were five points to the specific-claims pillar. One was increased funding for research and negotiation of claims. The second point was a fast-track process for claims that were, I believe, over $2 million. The third point, which we do not believe they had to add because of the case law, was to remove the bar to pre-Confederation claims. The courts had already clearly established that lawful obligations of the Crown prior to Confederation are inherited by the Crown in right of Canada. The last two-points are important. The fourth point was the establishment of an interim Indian Claims Commission to review claims that had been rejected by the Government of Canada for negotiation; or to hear cases where the compensation criteria of a specific claim were in dispute. It also had a third function, which was to provide mediation services where requested by the parties.
That is the existing Indian Claims Commission which was an interim body established in 1991. That went hand-in- hand with the fifth point, which was the establishment of a joint working group between the Government of Canada and First Nations to develop recommendations for a new or improved process.
That was our first attempt to work together at joint policy development in this area. In respect of the Indian Claims Commission, when the Assembly of First Nations accepted the minister's proposal, we had given a conditional acceptance. One of the key conditions was that the minister consults with us regarding the terms of reference for that Indian Claims Commission. However, we heard nothing from the government until the spring of 1991. All of a sudden, we read in the newspaper the announcement of the appointment of a chief commissioner for the Indian Claims Commission. It caught us by surprise. Of course, the chiefs were not pleased.
The agreement had been that we would provide a list of names to the government from which they would choose one-half of the commissioners. However, we had not been consulted on the terms of reference. The chiefs were upset because the criteria and the compensation criteria from the specific-claims policy were simply taken and put into the Order in Council establishing the Indian Claims Commission, which was empowered under the Inquiries Act to conduct its public inquiries.
At the time, our legal advice was that an Order in Council is a form of subordinate legislation and therefore, was legislating the very policy that First Nations were demanding be replaced.
We refused to give names to the government of the day. The commission could not commence with its work, as a result, for the first year.
Finally, there was a meeting between our chiefs' committee, which at the time involved about fifty chiefs, and the Department of Indian Affairs and Northern Development, DIAND. At that time it was agreed that we would work on an adjustment to the Order in Council and subsequent to that, we would put forward names for appointment.
I was involved in that process which is why you will see two orders in council establishing the Indian Claims Commission. The first one states that the ICC is an interim measure. I will never forget Minister Tom Siddon's words at the time when he told us that the interim commission would provide a degree of fairness under the existing policy. That was the beginning of what we thought would be a few short years of an interim commission. The joint working group and its final report from October 1993 is in the background package that I gave to the clerk of the committee.
We did not know it was the end at the time. However, when those discussions to develop recommendations began, we quickly found that we were at opposite ends of the spectrum in terms of our perceptions of what needed to be done. DIAND and Justice officials involved in the discussions came from that old school of telling us what cannot be done — you cannot do this; and you cannot do that. They were tough discussions and it did not work in the first two meetings. It ended up that we had to bring in a neutral facilitator who was Bonita Thompson, an alternative dispute resolution expert from Vancouver. She helped to facilitate our discussions from then on. That was a different era and a different set of discussions because of the way we approached it. It is almost a positional bargaining type of discussion, because we had our position, and they had theirs. We ended up with the report that is in the box, of October 1993, which is the report of the neutral.
At the end of the recommendations, we had reached agreement on a list of 13 items on which we could not reach agreement. That was the summer of 1993. That fall, we had the federal election, during which Mr. Chrétien, the Prime Minister at that time, had issued a Liberal Party policy paper. It was a companion document to the Red Book of the day, which expanded on those promises that included the establishment of an independent commission, which would be jointly developed and appointed with the First Nations. It was a more extensive commitment made in the Aboriginal platform, as they called it. It is in the background materials provided to the committee.
When the new government came in, we thought, "This is great. We will make progress here.'' That was in 1993.
What happened then was we could not get any discussions with the government. Of course, at that time, there was conflict between our then-national chief and then-minister.
The Chairman: Who was the national chief at that time?
Mr. Pangowish: Ovide Mercredi, and Ron Irwin was the minister.
We were not able to engage in any discussions to carry on with that commitment or the work that had been done by the joint working group to establish a new specific claims process.
It took us two years, through the help of chiefs who were able to sit down with the minister and discuss. It was agreed we needed to address these issues. We began a series of discussions. We developed a discussion paper. We learned several things from the joint working group process. That was because of learning about alternative dispute resolution, which was a new discipline at the time. It is much more highly developed now. We knew what needed to be done. As well, it informed what kind of joint process or discussions would be more effective. We developed a paper at the time called the "Rolling Draft,'' which is also in the background papers. That was circulated to all the chiefs across Canada to promote discussion. We realized we had put forward general principles, but we had not built consensus on the particulars of what we wanted to see in terms of a process and mechanism. That document was to aid discussions toward identifying what kind of process we wanted to see.
The Chairman: That is the one in 1998, is it?
Mr. Pangowish: I believe it is 1996. I am not even using the chronology. I am going from memory.
In 1996 or 1997, we contracted, with the cooperation of the department, a review of the interim Indian Claims Commission, to see how it had performed and what lessons. Part of the purpose of the Indian Claims Commission was also to inform First Nations and government as to what mechanisms or what lessons there were to be learned in terms of trying to develop a more effective way to deal with specific claims. That was part of the purpose, too. Ben Hoffman, the chief executive at Concord Associates, did a review of the Indian Claims Commission. He is a conflict resolution expert who has worked for the Government of Canada subsequent to that. That report is also included in the background materials, which we have provided.
His review concluded where the weaknesses were in the commission process. The key weakness was its lack of authority to resolve claims. One of the key problems all along has been that the claims process is dragged out continuously because there is no incentive on the part of government.
Following those discussions in 1996-97, it was agreed we needed to commence the joint discussions that had been promised in the 1993 Red Book, so a Joint Task Force was established. Of course, it is always difficult when there is political conflict between our national leadership and the minister, and at that time, the need was felt. Previously, we had a protocol with the Siddon government to guide these discussions, and we proposed a protocol at that time that we would undertake with Minister Siddon. A draft is in the background material as well. Unfortunately, the day that the protocol was to be signed by the minister, we held a press conference that he was upset with, so he did not sign the protocol. Nonetheless, the joint task force discussions proceeded.
The first thing we did, based on the lessons of before, was rather than get into a positional bargaining type of discussion again, we decided to draw upon some of the lessons of alternative dispute resolution. We said, "Let us take an interest-based approach to these discussions.'' We had federal officials, and the joint task force was composed of federal officials and justice officials who were appointed by the government, and regional technical representatives from the First Nations. When it comes to specific claims — and this will be an important issue in looking at the bill — these kinds of obligations arise across the country, and there is a different history and legal situation in almost every province. It is an important consideration in looking at this particular type of claims issue.
We had the representatives, which was all new. When these discussions proceeded at that first meeting we said, "What do we agree upon that needs to be done?'' We began to frame out those things that were agreed upon. We brainstormed. A picture began to emerge of what was agreeable and doable. During the discussions, the legal counsel for the federal side changed several times near the beginning, because, as I was informed by the federal co-chair — I was the First Nations co-chair, by the way — we did not want to get into the situation of not being able to do this or that. We were trying to find out what can we do. Our mandate was to get the job done and make recommendations.
Finally, legal counsel was found, who was very helpful, and they were helpful in the joint task force process.
Discussions proceeded over almost two years. We met about every six weeks. There was an agenda for each meeting. I did not provide it, but I have summaries of all the discussions that took place. It was painstaking, detailed discussions. This is only the beginning. The subject gets quite complicated and intense, and we certainly learned that from our discussions.
The Chairman: Do you feel that all the discussions that you have had since 1990, and the work that you have done in cooperation and in consultation with the government, have been put into part of this bill, in your opinion?
Mr. Pangowish: In my opinion, and Mr. Schwartz will speak to the legal opinion, the main elements, a commission and tribunal, have been taken, but the basic concepts have been perverted somewhat to undermine the essence of what was to be accomplished in terms of improving it and making it fairer. I will get into that a bit, because to understand that, we need to look at the joint task force report, which is in the yellow book. It is kind of technical. It was framed as legislative drafting instructions because, at the time, there was some urgency to this matter.
Minister Stewart wanted to move this through as part of the "Gathering Strength'' commitment, and we wanted to have something that was ready to go. We subsequently learned that that might have been part of the problem.
In any case, I would like to review with you the main elements of the joint task force proposal.
The Chairman: Where is that in the yellow book so the committee members can follow it?
Mr. Pangowish: If you go to the joint task force report itself, which is about half-way through, there is a cover letter from the co-chairs. You might note we ended up having to do separate letters and could not attach a list of the participants. I will explain that shortly.
The Chairman: Is that Mr. John Sinclair?
Mr. Pangowish: Yes. There is the letter, and following that letter there is a background, and then main elements where it lists the key features of the joint task force report: first, the removal of Canada's perceived conflict of interest through the creation of a truly independent mechanism which would report directly to Parliament and to First Nations; and second, the establishment of a commission to facilitate and ensure good faith negotiations by providing appropriate mechanisms for alternative dispute resolution.
Unlike federal policy that exists now, where it is narrowly defined and claims have to fit within that process, the idea of the joint task force report was to settle claims. The goal was settlement, and the idea was to provide the maximum flexibility. Let the system adapt to the claims rather than the other way around. That was the genius here, we thought.
The Chairman: In your opinion, do you think that this bill addresses any of this?
Mr. Pangowish: Only to a very limited extent, because of some of the limitations that are imposed.
The Chairman: Will you be addressing that?
Mr. Pangowish: Yes, I will. It becomes a bureaucratic step that is unnecessary because the limitations are not providing any advantage to the process over what exists.
The establishment of a tribunal to resolve legal disputes when negotiations fail will be very important in terms of looking at the legislation. As the legislation lays out, there are three purposes for which a claim can be brought to the tribunal: first, for validation, or establishing whether there is a valid claim or a claim that should be negotiated; second, interlocutory issues, which is one of the biggest problems in specific-claim negotiations, disputes over legal aspects that prevent progress in negotiation; and third, compensation. As you can see, the limitations in the tribunal distort the entire system because the whole idea of a commission and tribunal was not that most claims should be going to the tribunal, but that the tribunal provides an incentive for negotiations to work because you have an easily accessible quasi-judicial body available to the First Nation claimants.
Senator Banks: The commission comes first, does it not?
Mr. Pangowish: Yes.
Senator Banks: The commission does not have a limit on what it can award in Bill C-6.
Mr. Pangowish: Yes, but that is negotiation. The parties have to reach agreement. One of the biggest problems in specific claims generally has been the government's refusal to negotiate and the denial that it has a lawful obligation, basically. They do not agree, "We do not have a lawful obligation.'' We are saying that because of the fiduciary nature of most of these claims and the relationship between the Crown and First Nations, the government is in conflict of interest to be the judge and jury of claims against itself, especially fiduciary-type claims that have a unilateral nature to them. That is why the court in Guerin v. The Queen established that the highest standards of conduct must apply. The Crown is acting unilaterally on someone's behalf; therefore, it must act according to the highest standards because the honour of the Crown is always at stake in such matters.
This is why the joint task force recommended that this commission be there. The claimant brings the claim there, and then it is really a decision of the government whether it wants to negotiate or not. If it does not want to negotiate, the tribunal is available. The whole consideration of whether it wants to negotiate or not and the whole nature of that changes. It is merely an opinion on the part of the government because it is in a conflict. It is looking at claims against the Crown.
Senator Banks: But there is a tribunal in Bill C-6.
Mr. Pangowish: Yes, but Mr. Schwartz will get into that in terms of the limitations on this tribunal. The cap of $7 million removes the incentive for negotiations on any claims under the commission that are over $7 million. What is the incentive? We are still in the same situation.
Also, under the bill, there are no time lines. The minister simply has to report every six months that they are not prepared to provide an answer yet. That is understandable with the limited resources available to the Department of Justice to assess claims. It does not even have to be a malicious intent, but just lack of capacity to deal with the claims. There are 550 claims in the backlog now.
Senator Banks: Just anecdotally, how many claims have been settled so far over $7 million? There have been 252 claims settled so far. How many have exceeded $7 million? If you want to come back to that later, that is fine.
Mr. Pangowish: I will finish on these features of the joint task force report. In the task force report, the tribunal was to make decisions on the validity of grievances to compensation and the award, and we put subject to reaching agreement on a fiscal framework. One of the biggest issues we were discussing at the joint task force was that federal officials from the beginning talked about a cap. Our legal counsels from across the country were involved in these discussions, and we were all of the view that putting a cap on individual claims represents a prejudice, immediately. These are all lawful obligation claims, but based on monetary value we are saying certain ones can be dealt with and certain ones cannot. An alternative process is not even provided for. The only alternative is the courts. The whole reason we have policy now and are looking at another process is because the courts are inefficient for this. Most First Nations cannot afford to go to court. Again, we are talking against a background of fiduciary relations.
We wanted to avoid this prejudice on individual claims. That is why what was proposed in the task force report was what was called FYCA in our discussions, a five-year compensation amount or allocation. Again it is a budgetary approach, but you must note that the task force report is neither a First Nations document, nor a government document. It is a joint document developed by officials from both sides and experts in the field. It was the best recommendations that we could come to at the time. I believe the minister has acknowledged it was good work. International experts have informed us it is a very good piece of work. That is what convinced us that it was important to stay true to the principles, because they are intertwined in how this is to work. The tribunal is an incentive to the commission to have effective negotiations, because that is a problem now. Negotiations on even small claims stretch out over a dozen years sometimes because there is no incentive to reach settlement.
The Chairman: We have been going for three-quarters of an hour now, and we would like to perhaps have Mr. Schwartz discuss the differences. You have done a good job of explaining the background and the task force, and that is important to this. Would you like to go forward a bit and then have Mr. Schwartz start on the technical part and where the differences are and what the issues are between the bill and the task force and what you perceive as being better? I understand that you are saying many of these things are in the bill, but they are not effective.
Mr. Pangowish: They have been distorted.
The Chairman: Yes. I would like to have the committee listen to what is going on in the bill between the task force and this bill as it stands now so they have a good understanding when we begin to discuss this.
Mr. Pangowish: We want to make sure to address the legal analysis. Perhaps after Mr. Schwartz is done, I will come back to that.
Mr. Bryan Schwartz, Legal Counsel, Assembly of First Nations: I will proceed to do exactly what you have asked me to do. I would like to make a few preliminary remarks, which were not previously prepared. The comments occurred to me while I was sitting here. We have many prepared documents here. I want to convey to you some of the overall sense I have about the process and substance of what is happening here.
The word I wrote on my pad here was "reality.'' I am concerned that many realities have not been captured so far in the parliamentary process.
There is the human reality. This bill has about as boring a title as you can imagine, "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.'' It sounds dull. It sounds technical. It sounds as though it does not make much difference to real folks.
In the province of Saskatchewan recently a band received a settlement for $93 million because there was an independent claims commission that was able to investigate their claim after it was rejected by the federal government. Access to that facility would no longer be available under the new bill. I do not know those folks, but I would imagine that the human impact of having historical wrong redressed and having that amount of money coming into a community, which is probably impoverished, had an enormous impact on the quality of life of those people. It made the difference between being poor and having a chance at life, between young people leaving and young people staying, as well as between having a sense of sufficiency and independence and a sense of dependency and indignity.
As my colleague said, a great many First Nations that asked to appear before the House of Commons committee were not permitted to do so. I do not think anyone, and I include myself, can fully appreciate the impact of what is proposed in Bill C-6 without giving the opportunity for people who have the realities on the ground to come and appear before committees like this. At the upper echelons, we try our best to appreciate what is going on but there are different legal realities and different human realities in every community across the country. I am convinced that they have not been captured and appreciated so far.
Second, there is the legal reality. I have a real frustration with this. I know that legal language is subject to different interpretation. I know that people view things differently depending on what their interests are. It is easy to say that First Nations are unhappy but the federal government says, "It is okay, even though it is a close call we will go with one or the other.''
In 1998, we had a consensus of federal technical people with First Nations technical people. We had something that fulfilled what every task force has recommended, including the Diefenbaker bill in 1993, the RCAP and the La Forest commission.
We now come out with a bill that has been universally condemned in First Nations country. There are resolutions from the Assembly of First Nations, the Atlantic First Nations, Manitoba First Nations and British Columbia First Nations. There are a slew of band council resolutions condemning the bill, almost all in identical terms and not because there was a form letter sent out.
How do you go from a consensus to one party universally thinking that the bill is a step backwards? To me it is because the legal reality is that the bill is a step backwards. I want to explain clearly why that is, and I will get to that shortly.
This is not just one of these, "We want something, they want something and we interpret things differently.'' I suggest to you that there are clear-cut problems that cannot be papered over by being differences of good faith perceptions.
In fact, just as I invited you respectfully to give people with the human realities a chance to appear before you, the Assembly of First Nations would more than welcome your inviting people who are independent of the assembly of First Nations and independent of the federal government to give their assessment of it.
We have not spoken to Justice La Forest, but he did a report years ago on what such a commission should be like. He is a former justice of the Supreme Court of Canada. We think it would be great to have him come.
The Chairman: Would you like to speak a little slower because the reporters' fingers fly fast, but won't fly that fast.
Mr. Schwartz: We would welcome you giving independent experts like former Justice La Forest the opportunity to speak to you. We are confident that a dispassionate, informed and independent person would endorse a great many of the criticisms we have made.
Third, I want to talk briefly about fiscal reality before we get into the details of the bill. The minister suggested that the joint task force report was an exemplary model but there are fiscal realities.
First Nations have consistently recognized that there are fiscal realities. In the joint task force, we came up with an idea that federal technicians thought was reasonable to deal with the fiscal realities. Even though these are claims that are longstanding, even though there are people continuing to suffer from long ago as well as more recent deprivation of basic rights to their lands and assets, we agreed that it would be reasonable to have an orderly fiscal framework to resolve them.
We continue to think that if there were a return to the negotiating table and if the federal government had a reasoned objection to what was previously agreed, we could find something else. However, a fiscal reality that excludes most claims from the tribunal is not acceptable. The fiscal reality point does not explain or justify, and can cannot explain or justify, the lack of integrity in the bill.
Whether the cap is $2 million or $10 million or $100 million or whether you do it by number of claims a year or whatever, the system must have integrity. It must be genuinely independent and seen by reasonable people among First Nations as being independent. It is not.
Finally, there is a political reality that at this end of the table is difficult to fully appreciate. There is a party with a governing majority. The Senate has a majority from the same party. We do not know all the connections of party affiliations, loyalty, discipline, personal regard and so on that would enter into the calculation. I would say, with the greatest of respect, that political realities are the product of choice. No chronicle is foretold here. We are here because we are hoping that if we are able to present our arguments reasonably and rationally, and if they have merit, they will be acted upon and will not be submerged under rhetoric, discipline or inertia. Let me try to make my case.
There is a document called "Legal Analysis of Bill C-6, " which you will find fairly close to the beginning of the yellow book. I was the counsel for the Assembly of First Nations. That is primarily the document from which I will be working.
The author of this, me, is the same person who was legal counsel to the Assembly of First Nations when we produced the joint task force report.
As Mr. Pangowish was saying, that was an extraordinarily positive and constructive experience. We addressed issue after issue and tried to work together. We not only came up with a solution in principle, we actually came up with draft legal language on every single issue that arose. This could have been, and still can be, a model about how a genuine partnership relationship can work effectively.
When Bill C-60 — it is now Bill C-6 — came out, let me assure you that the bias of the technical people on our side was not to come out and say, "We do not like this.'' Why would we? We had a tremendous amount invested in personal terms in seeing that this was a success. We had participated in a positive process. We wanted to say that we had been involved in something that contributed to federal legislation that worked. We did not come out immediately with a knee-jerk, negative reaction. We spent the summer studying it. Every single technician worked on this in the joint task force, all the lawyers who worked for all the other First Nations and I came to precisely the same conclusion.
Let me begin with what seems like a logical starting point. I am at page 6 of my opinion. What is a specific claim? If you are not defined under this statute as having a specific claim, you have access to none of it, not even to the commission. You are totally excluded from it. During the joint task force report, both sides agreed on what the definition should be in principle and this is well documented.
Both sides agreed that the definition should be based on the current definition in the federal document referred to as outstanding business, but modernized and refined in light of case law since then. They take the existing definition, look at what the case law has done since then and tweak it so that it is up to date. The definition should be at least as extensive as it always was, plus take into account any developments, including comments by the Supreme Court of Canada.
I want to emphasize, and I am afraid this may come up in significant ways in the future, that the federal government assured us right from the beginning that this was what the criteria were going to be. This was what was agreed upon in the joint task force report. This is not what we see in Bill C-6.
There are significant ways in which Bill C-6 falls short of the current definition and the way it falls short in terms of what was consistently promised by the federal government and agreed to earlier. The current definition refers to breaches of treaties and agreements and is not confined to treaties and agreements that deal with lands and assets.
It could deal with treaty rights with respect to hunting and fishing. Cases have arisen in which the interim claims commission has dealt with that kind of case. The Bill C-6 definition excludes those kinds of treaty breaches.
There is an even more devastating omission. I cannot understate the importance of this, because it is an existential matter to some First Nations communities. Many First Nations communities were unilaterally promised that the Crown would give them reserves. There are First Nations whose ability to have any kind of land base or quality of life depends on the fulfilment of a unilateral undertaking.
The Supreme Court of Canada said in the Guerin v. The Queen case that a fiduciary obligation leading to an enforceable right, in other words a specific claim could include something that is the result of a unilateral undertaking. The joint task force definition included promises to provide lands or assets by a unilateral undertaking. The federal government had agreed. The Supreme Court of Canada said that this is a way in which a specific claim might arise. This is excluded from the definition in Bill C-6. That was never discussed with us at the joint task force stage, at least at the stage when we were still negotiating and working as partners, rather than being unilaterally told what might happen.
To include a unilateral undertaking does not mean that every unilateral undertaking would become a specific claim. You still have to show that it is a legal obligation. There is no risk to the federal government of a new category of claim suddenly being created. Only if it is a legal obligation that is being breached can the unilateral undertaking give rise to a right under this system. We would not be adding to the category of federal liabilities, but we would not be excluding it under the joint task force definition.
The definition in Bill C-6 excludes a category of claims. What is the practical significance? To tell you the truth, I cannot quantify that on the basis of careful study. I have spoken to colleagues who have estimated that, potentially, one-third to more than one-half of specific claims might be excluded. Is that figure too high? I do not know for sure. How big it is, for some First Nations in Quebec, British Columbia and other places, where their rights to a land base is dependent on a promise, this is as close as a matter of collective life and death as you can get without actually getting to the point of biological existence. Do I have a land base? Do I have the basis for a collective existence here? This is serious business and the exclusion is unacceptable.
A number of other exclusions and a whole list in schedule of exclusions were not contained in the joint task force report. A claim must be at least 15 years old. A claim cannot arise under a modern land claims agreement. I could go through the litany. Are these exclusions unreasonable? I do not know for sure, but they should have been discussed with us before the list came out. Some of the exclusions clearly are unreasonable. One should not have to wait for a claim that is similar to another claim to age for 15 years before one starts the whole process.
Another exclusion from the definition is rights that arose under a British statute before Confederation or under a British proclamation before Confederation. I will not go through the whole technical song and dance. You must read all sorts of clauses and subclauses. Maybe this was even an accident on the part of the federal drafters. However it arose, the fact of the matter is that you cannot make a claim for a breach of an obligation that arises under a pre-1867 British statute or a pre-1867 British proclamation.
We had agreed at the joint task force that we would include these kinds of claims. That was unilaterally changed after the process of collaboration broke down.
If there is one point I did not emphasize strongly enough in my legal opinion, it is the question of criteria. It is a serious business. I do not think that anyone should be able to persuasively argue that this is an improvement on the status quo when there are exclusions of some claims that could be made under the existing system and the exclusion of even more claims that were promised to be included under the joint task force report.
There is some playing with language in some federal documents that we have seen in which people have argued that it is not narrower than the existing definition. I want to give you a little logical vaccine here.
We are not only comparing to the existing definition, but we are comparing to the definition that the federal government promised; the existing position modernized in light of what the Supreme Court of Canada says, which includes things like unilateral undertaking. The chapter and verse is set out in the legal opinion.
Various members, including at least one Liberal member of the House committee, acknowledged almost all of these problems. Specific amendments were proposed at the House to remedy all these problems with criteria. All of them were rejected by straight majority party vote with the exception of one Liberal dissenter, despite the support of all opposition parties. The same story is true for the House of Commons. These issues have to be addressed for any statute that purports to be fair and just.
The second point I want to address is access to the tribunal. Can any claim access the commission? Yes, you can file any claim, as long as you do not run afoul of the criteria. That is a preliminary hurdle, but there is no dollar limit on getting to the commission, which is followed by my next question: What if you get to the commission? Where was that taken you? We have a problem. There are about 400 or 500 more claims now than there were after Oka. There are more claims coming into the system every year than are resolved. Continuing a situation in which people do not have access to binding dispute resolution, which means access to the tribunal, will just continue the failures of the past.
There is little value to being in front of a commission where you can have an endless chit-chat if there is no incentive on the part of the federal government to get serious, make a decision about the claim, and if it considers it valid to negotiate the claim. Alternate dispute resolution works in one condition only, that is, if there is an incentive on both sides to make it work. Relegating people who have been frustrated for 40 or 50 years, but at least 15 years, to more process of watching their people grow up without redress, and they have nowhere to go because they cannot access the tribunal, is not a step forward. It is a step backward, in fact.
Right now, as I said at the beginning of my remarks, a large claim has access to the interim Indian Claims Commission. That large claim I mentioned earlier, the Saskatchewan claim, was resolved because after it was denied by the federal level of government they were able to go to the Indian Claims Commission and get a favourable recommendation. The federal government then negotiated and it was resolved. That facility would be taken away. You have no right under the new statute if you have a large claim, over $7 million, which is not all that large if you look at the population pool. It is large in terms of dollars — whatever perspective, $7 million is a lot of money — but in terms of the number of claims and their size, we believe they will actually exclude most claims, and I will try to substantiate that.
In any event, right now, all claims can access the commission, which has the powers of inquiry under an inquiry act, can subpoena witnesses and can issue a report that has some moral authority. It is the report of the collective Indian Claims Commission and it has some moral suasion. Some cynics or realists on the federal side have said, "Ah, we do not pay any attention to them anyway.'' Whether that is the case or not, certainly the people on the First Nations side believe there has been some impressive cases, like the one I mentioned, in which it has made a difference, and that access would be taken away.
Again, there are two levels of deprivation. Compared to what we already have, it is a step backwards because claims over $7 million would no longer have access to the Indian Claims Commission for a non-binding decision. Claims in excess of $7 million will not be as well treated as they would be under the joint task force report because there was no cap on individual claims under the joint task force report.
I want to be clear about this because there are always two questions: Is it worse than what we got? Is it worse than what we were led to expect under the task force report? With respect to accessibility, it is worse in both dimensions. It is significantly worse in terms of large claims being able to get access to non-binding recommendations, and worse in the sense of not as good as a joint task force report by far because everything over $7 million is excluded.
What is the practical impact of the exclusion of claims of over $7 million? It is true that the cabinet, the Governor in Council, can raise this limit if they want. It is also true they can lower it if they want. If we take it at $7 million, what does that actually mean in reality? I believe it was Senator Sibbeston who asked the question and I want to respond.
We will table this, if I may, and we will submit the whole document after. I do not think it is in the material provided. I will not go into it in too much detail.
The Chairman: We have a number of questions here that senators would like to ask.
Mr. Schwartz: This is the expenditure report by the Department of Indian and Northern Affairs, and it takes us up to the middle of 2003, the 2002-03 fiscal year. Two claims are reported to have been settled in this latest fiscal year, one for approximately $63 million and the other for $6 million.
If I look at the previous year — and, again, I will give up the whole table I am looking at — five claims were resolved, four of which were well over $6 million — $17 million, $37 million, $83 million and $14 million. Only one claim was under $7 million and it was $40,000. This is footnoted in my legal opinion. In the last three fiscal years at the time I wrote the opinion, 14 claims were resolved; eight of which — a majority — were for over $7 million.
The federal government suggests that if you look at past settlements a majority are under $7 million and this is true. If you look at 1990 to present, most claims were settled for less than $7 million, but — and there are many — the claim settled in 1990 is worth a lot more now. Interest will accumulate on the claim if it is resolved fairly. A $5-million claim might be a $10-million claim by now.
Second, the system was not one in which First Nations had access to a tribunal. Therefore you had nowhere to go if you did not like the result, other than a non-binding report of the commission, so you had a lot of incentive to settle for less than the full value of the claim. You had no other recourse. Of course, there would be selective pressure to resolve claims for less than their full value, and another but, of course more claims will be settled for less money than claims will be settled for more. If you are looking at what claims traditionally have been settled, the easiest ones would have been settled first. It is easier for the federal government to settle a small claim than a big one, since there is less strain on their budget. That is reasonable. I am not criticizing that. However, it means that the past practice will not be a good projection of what will happen in the future.
If First Nations have access to a fair process, the settlement value of claims is likely to be larger than it is when they have no recourse. We believe a majority of claims will be well in excess of $7 million. The Indian Claims Commission, in its submission to the House of Commons, said that of 120 claims that they had considered, fewer than 10 were for less than $7 million.
Again, if one wants to look at fiscal reality, we would be pleased if this committee would invite any independent expert to have a look at the population and make their own projections. We are confident that if looked at reasonably and dispassionately, it is unrealistic to suppose that most claims, let alone a great majority thereof, will be within the cap.
Here is another but. Say you have one claim worth $100 million and one that is worth $50,000. You say, great, half the claims can have access to the tribunal. Well, yes, half the claims had access to the tribunal, but less than 1 per cent of the value of those claims had access to the tribunal.
It is like the old joke about statistics. If a disease strikes only old people and babies, the average age of the victim is 40. If you are going to exclude all claims above $7 million, then the fiscal mass will be overwhelmingly excluded, even if a majority of numbers are included.
The fiscal cap is draconian. Again, it can be raised or lowered at the uncontrolled discretion of the federal executive. How are we getting away from the conflict of interest if the federal executive freely has the right to determine how high the claim limit will be from time to time, and can lower it as well as raise it? This is among the many unilateral levers that the federal government has under this new system, which makes it impossible in our view to say that this new system is truly independent.
I have already covered point 3 of my opinion, which is at page 13: access of all claims to obtaining an independent inquiry and report. That facility is gone.
The federal government has occasionally replied that we can still get non-binding arbitration under this new system. Let us look at the language carefully. Under the new bill, you can only get non-binding arbitration if the federal government consents. You will not have the right to get non-binding arbitration under the new system, although you had the right under the existing system. It is strictly a matter of federal noblesse oblige as to whether they will allow you to have access to a non-binding report.
Furthermore, the non-binding report would be the product of one arbitrator, who is easier to ignore than the collective wisdom of the whole claims commission, which is what the existing system is: existing system, matter of right; new system, matter of federal noblesse oblige; existing system, your non-binding report has the moral authority of the whole Indian Claims Commission; new system, the federal government can say, "That is just one person's opinion. Forget it.''
If we have a problem with the federal government already not complying with recommendations of the Indian Claims Commission, it will be a lot worse if it is just one person's opinion rather than the collective wisdom of the Indian Claims Commission.
Amendments were, again, proposed at committee to address this issue. An amendment was made to continue the jurisdiction of the existing Indian Claims Commission so that this new body can continue to do, among other things, what the old body did. Again, the amendment was supported by the opposition parties and defeated by a straight party vote, apart from perhaps one Liberal dissenter. Mr. Pangowish has spoken of some of the frustrations and the dissatisfaction with that process.
One of our colleagues handed briefing material to people who had not attended most, or any, of the hearings, who turned it back and then proceeded to vote against the amendments. This is a frustrating process and I regret to have to put that on the record.
The joint task force report did not have to continue the facility of the existing claims commission to make non- binding recommendations because all claims had access to the tribunal. However, if you are going to put a cap on, you must at least continue the existing jurisdiction of the Indian Claims Commission. You will find amendments on the record from the House of Commons that would have done precisely that.
The Chairman: Mr. Schwartz, clause 24(e) of the bill says, "The Commission, in carrying out its functions, may,'' and you are talking about arbitration. Would you explain that to me? Clause 24(e) says:
...foster, at all times, the effective use of appropriate dispute resolution processes — including facilitated negotiation, mediation, non-binding arbitration and, with the consent of the parties, binding arbitration — for the resolution of specific claims.
Is this what you are speaking about?
Mr. Schwartz: Yes.
Senator Banks: Does it not say that it is binding arbitration that requires the consent of both parties?
Mr. Schwartz: Binding does. For non-binding, I suppose they could foster, and if the federal government does not cooperate, what?
Senator Banks: Or if either party does not cooperate?
Mr. Schwartz: You are correct, senator.
Your point is well taken because there is a distinction between consent for binding arbitration and this general mandate to foster, which could include non-binding, except that the existing Indian Claims Commission has the powers of a commission of inquiry. It can proceed with its business and can issue subpoenas regardless of whether the other party cooperates. We cannot find any such authority in this bill.
Senator Banks: Unless you remove the cap?
Mr. Schwartz: If you remove the cap, all claims would have access to the tribunal and you would not have to worry about getting a non-binding recommendation.
I do not know if I have explained this adequately. If you have access to binding arbitration, it is obviously less important whether you have access to non-binding arbitration. The joint task force report did not have to continue the existing right of the ICC.
If you are going to take away the access to the tribunal that was in the joint task force report, then where do these other claims go? The position of the Assembly of First Nations is you should not have a cap. However, if you are going to have a cap, there must be at least a second-best place for these larger claims to go. The commission says it is fostering non-binding arbitration. The federal government says, "Foster all you want.'' This does not contain the ability to issue subpoenas or the moral authority to issue a collective report.
We discussed exactly what "foster'' means before the Indian Claims Commission and my recollection is that both parties agreed that we were not sure what it means.
Did I answer your question, Madam Chairman?
The Chairman: Yes, thank you very much. I agree with you: What does "foster'' mean?
Mr. Schwartz: To elaborate on that point a bit, we sometimes get some guidance in terms of how to interpret statutory language from a preamble or a purpose clause. It is striking, in the context of an ambiguous word like "foster,'' to compare the old bill with the new bill. The new bill is, let us say, anodyne. Clause 3 of the new bill reads:
The purpose of this Act is...to help first nations and the Crown resolve specific claims and the Tribunal to decide certain issues arising from those claims.
In what the joint task force said the purpose clause is strikingly different. Clause 3 in the joint task force report reads:
This bill will provide that the purpose of the Act is to establish an independent and expert Commission —
The words "independent'' and "expert'' are removed from Bill C-6.
— to help First Nations and the Crown settle, or resolve by binding arbitration, certain claims and to establish an independent and expert Tribunal to expeditiously and finally determine issues...
Words like "expert,'' "independent'' and "expeditiously'' have been removed. This is disturbing but perhaps, in a strange way, honest, because that commitment to expeditious and independent are not contained in the substance of the new bill. We very much wish they were, but we have to regretfully report, from our perspective, that they are not, which is a segue to my next point, which is the issue of independence and impartiality.
All specific claims arise from a breach of a fiduciary obligation on the part of the Crown. Sometimes there is more to it than that; sometimes they have a constitutional status. If you have a treaty right that is breached by federal behaviour, sometimes that is a breach of a right that is protected by section 35 of the Constitution. However, even if we are just talking about fiduciary obligations, these have a constitutional status. Section 91(24) creates this fiduciary relationship and out of it there arise specific claims. Whether or not it is a section 35 claim, it is a claim that has a constitutional nature.
The primary directive of a fiduciary is to avoid conflicts of interest. The problem identified by everyone from the beginning of looking at these systems is the status of the federal government as judge in its own cause. That is why there have been almost 40 years of recommendations to set up various systems.
The federal government has allegedly breached an obligation. By the way, more than half of specific claims are ultimately found to be valid. I do not recall the exact statistic. Not all claims are valid but the majority are.
When the federal government is faced with this, it is in a position, if it decides for itself, of conflict of interest. The federal government says, "So you have a claim against us for $10 million? We will decide whether it is valid or not. If you do not like it, go to court. There is not really a conflict of interest here. We are just giving you our initial impression. If you do not like it, you can take us to court and someone else will decide.''
As my colleague Mr. Pangowish has said, that option is often either practically unavailable or legally unavailable. The federal government reserves the right under existing policy to invoke technical defences. That means it can invoke statutory limitation periods. "You did not bring your claim within 6 years,'' or "20 years,'' whatever, "then it is too late. No claim.''
To use a word that my colleague used, there is a perversity in this because, until the early 1950s, First Nations could not use lawyers without permission of the federal government. The same bill now says you have to wait 15 years before you can file a specific claim. It also says if you do not like the way the government handled things, for $7 million, you can go to court. Many people will be statute-barred by the time they get to 15 years.
The Chairman: Or they may be dead.
Mr. Schwartz: Yes. As John Maynard Keynes said, "In the long run we are all statute-barred.''
We are looking to set up a system. Everybody understands that there should be a way to escape from the loop of conflict of interest where the federal government can be the judge and jury in its own cause.
The joint task force report involved joint appointments of persons who would serve on the commission and the tribunal. That was to give it a real measure of independence. You could not be put on the commission or the tribunal without both sides agreeing and you could not be removed without both sides agreeing. You could not be reappointed unless both sides agreed.
Sometimes the federal government says that this is a matter of Crown prerogative, which is sacred and holy. Can you point to another example in the history of this great federation where the federal government has ever allowed anyone else besides the federal cabinet to appoint people? Let me answer those points.
This is a statutory body. Parliament, not the executive, is supreme. If Parliament chooses to have some other appointment process, there is no constitutional doctrine that holds that Parliament cannot create an independent appointment process.
Second — and this is a real point of frustration because we have made it repeatedly and we keep hearing the same argument — not only can it be done but Parliament has done it repeatedly.
All the modern land claims agreements of which I am aware have dispute bodies whose composition is decided by a joint-participation process. If there is deadlock, an impartial person can step in and complete the appointment. None of the agreements — not Nisga'a, not Yukon, not Nunavut — includes a process to resolve disputes in the land claims agreement in which the federal government can appoint and re-appoint the decision-makers.
The federal government does that in the NAFTA context and in the World Trade Organization context. Statutes of Parliament have implemented all these processes that consistently involve dispute-settling bodies where the federal government and the other party each has a voice. Usually there is a deadlock-breaking mechanism in case of a problem.
The joint task force report process is entirely consistent with the federal level of government's own practice for many, many years. To be confronted now with the objection that it cannot be done or that this is some kind of innovation is, to put it mildly, frustrating. No satisfactory explanation has been offered.
If you think we are fussy, let me say that, in my respectful opinion, no "reasonable'' explanation has been offered. The explanation was, "We have done it. We do these things in other contexts.'' Why exclude the Assembly of First Nations? This is the legitimate, democratically selected representative of First Nations across the country. This is the body that the federal government chose to negotiate the joint task force report. Every single place where the joint task force report refers to "the minister and the Assembly of First Nations'' was changed in Bill C-6 to read "the minister.''
The Chairman: I would ask you to allow some of the senators to ask questions at this point, and then we can continue.
Mr. Schwartz: Certainly. It would be a pleasure.
Senator Sibbeston: I was going to raise the issue that you have dealt with; that is the prerogative of government. I know governments are generally jealous of their power to appoint through Governor in Council. They do not like to be in any way hindered by the assistance of another body. You gave the example of dispute-resolution bodies in the Nisga'a agreement and in other land claims agreements. Would that not be somewhat different? In that case, that is not the main purpose of the legislation. It is just in there to prevent any deadlock.
I asked my staff and I have actually asked the Senate legal counsel to review federal legislation to see if there are any provisions in present federal legislation where the Governor in Council is fettered by requiring other persons to be involved in appointments.
I would like to hear you on that. Perhaps the example you use is not a good one.
Mr. Schwartz: With great respect, I believe there is a strong analogy between Bill C-6 and the dispute-settlement provisions in these specific agreements.
The parallel is so strong that Bill C-6 says, "When you have a process in a modern land claims agreement, you cannot use our process.'' That is because they are complementary. It is the same thing with a different agreement.
In an ordinary treaty, where do you go if there is a breach? You must go to the tribunal. A modern land claims agreement is a treaty. Specific provisions have been made for an impartial dispute-settling mechanism. When you have specific modern agreements where people can think about dispute-settling, they make specific provision for impartial appointment bodies.
There is a whole mass of First Nations that have routine treaties with no specific provision. They will go to the tribunal. I am willing to argue the point. It is my position that there is no conceptual distinction between the two.
The Chairman: I remember being on the committee when this bill was being negotiated. I think Senator Sibbeston was there, too. Have you considered the Mackenzie Valley Resource Management Act? I know that relates to resources, but it states in that act that members of a board, other than the chairperson, and any special members appointed under section 15, shall be appointed by the federal minister and to the extent provided in parts 2 to 5 shall be nominated by a First Nation or the territorial minister or following consultation with First Nations.
I know it is not a dispute resolution but it is a form of nomination that might be considered.
Mr. Schwartz: Is the concept there that you can only appoint someone who has been nominated by a First Nation?
The Chairman: Yes.
Mr. Schwartz: There are different ways of doing it. The joint task force report does not go quite as far as the modern land claims agreements do. Those are fully joint, whereas the joint task force would say, "You and the First Nations agree on a list and we will pick from it.''
The Chairman: This one was the resource management act for the McKenzie Valley. I would suggest you have a look at that under section 11(1). The way it is worded is interesting.
Mr. Schwartz: I look forward to looking at it and sending you any comments we might have on that.
In terms of other analogies, such as the NAFTA implementation act or any implementation on any of our international trade agreements that involve binding dispute resolution, these are statutes of Parliament. An American investor can name one person to a dispute panel that decides a chapter 11 dispute under NAFTA. Is there a problem with giving a First Nation the ability to appoint somebody to a dispute-settling body that is greater than giving to a foreign investor? Under NAFTA chapter 11, Exxon can appoint someone to a dispute-settlement panel.
Even in Canadian constitutional practices, as jealous as it was, the federal government in the Meech Lake Accord was prepared to have Supreme Court of Canada justices chosen from lists proposed by the provinces. With respect to the province of Quebec, this would have given tremendous clout to their provincial government because you could not appoint anyone who was not favoured by the government of that one particular province. The federal level of government approved that resolution.
Yes, there is precedent, both in acts of Parliament and in constitutional resolutions. Maybe the federal government is, as a practical matter, always jealous of its prerogatives. However, as I said earlier, what is a political reality? It is a product of choice. Does the federal government want to break out of the existing pattern of conflict of interest by setting up a genuinely independent body, or does it want to appeal to systems that have proved ineffective and have been perceived as being involved in conflict of interest? My opinion has chapter and verse of case law, suggesting the appointment process in Bill C-6 is not consistent with the Charter of Rights, nor consistent with modern administrative law doctrines.
Senator Setlakwe: I have been involved in human rights tribunals, a system in place to deal with human rights. The whole history of that is progressively making the tribunals independent. Through the years, the status of the tribunal members has been challenged to the point where it eventually, because of court decisions, makes these tribunals as independent as possible. I can see, from what is before us here, that it really is not independent. If it were truly independent, it would have a provision for a system of arbitration, putting the parties as equal as possible. However, the federal government is huge and the First Nations or Aboriginal people are little in this process. You look at whose body it really is, who determines the appointments and whether the set-up guarantees independent decisions, free from influence decisions. These are the kind of criteria that you examine, so it is obvious that while your proposal came close to that and was really an attempt at providing an independent system and tribunal, what we have here is really not. It is stacked in favour of the federal government. It is a real concern. Obviously, I must believe there is a general intent by the government to provide for a system of adjudication that is an improvement over the present.
However, I wonder if, as you have said, they have really made things worse for the Aboriginal people, which would result in deficiencies and less progress than has been made to date. I am concerned, as I study it and learn about it. I really hope that, in our examination of this bill, we can make some amendments that would improve upon the bill. It would perhaps not be to the extent to which you had proposed, but we might at least improve it to the point where we can salvage it. Do you think, with some appropriate amendments, that the bill can be salvaged and improved upon?
Mr. Schwartz: The position of the Assembly of First Nations is the following in that respect: We would like to see a body like this one identify the difficulties in the bill, make suggestions and then urge the parties to return to the table. That is what we really want. I am trying not to cut into the question too much, but this is a very important point, so I will explain as briefly as I can. We certainly welcome the fact that opposition parties, at the House of Commons stage, made what we thought were thoughtful and useful proposals. The problem was that what we wanted to come out of that with is to go to the table, sit down with the federal government, and say, "Other people have looked at it and identified issues. Let us do what we did before at the joint task force.''
Is that pie in the sky? Whether the federal government is willing to come back to the table again is a political choice. With the benefit of recommendations from a body like this, is it possible, in a reasonably brief period of time, to sit down and work out remaining difficulties? We believe the answer is yes. We believe that on the basis of experience. At the joint task force report, we must have wrestled which 60 or 80 issues that all seemed pretty tough. At the end of the day, we resolved every single one. How did we get from "we agree to everything'' to "we are at a state of radical dissent,'' where the federal government is pushing this and First Nations are saying, "not only do we not want this, this is retrograde''? One of the important factors, in my view, was the breakdown in communication. When we are at the table, if someone said, "this is a prerogative matter,'' we could argue with them and work something out. At a certain point, the highest levels of federal government rejected the joint task force report and, instead of coming back for more discussions, the federal bureaucracy got hold of it and rewrote the bill in their own light.
In order not to sound self-righteous, I would like to give this analogy. If we had been asked at the Assembly of First Nations to write the bill, we would have written all sorts of stuff into it, which we thought was perfectly reasonable, but which would not have understood or appreciated legitimate concerns on the part of the federal government. When people are just talking to themselves, they tend to go off the rails. That is what happened here. There is problem after problem, which I think is the result of the breakdown in communication.
The process we would like to see from this body, with respect, is much consultation with the different groups in the communities who want to come and give their views; consultation with independent experts to identify the issues and send us back to the table.
Are some amendments better than nothing? We do not have a definite position on this, because we think that is premature. Right now, our goal is to get back to the table. What we are looking at, and you will pardon me for being honest, instead of the federal government negotiating with us, we are looking at a process where we have all these problems. Maybe the Senate supports us on some of them. Then the Senate could negotiate with the House of Commons, meaning the federal government. Where are we in all this?
The Chairman: We are the federal government. The Senate is also the federal government.
Mr. Schwartz: It is part of the federal Parliament. It is not part of the federal government.
The Chairman: In this committee in the Senate, we can make all the recommendations we want and no one will listen. However, what we do is make amendments to the bill in consultation with the witnesses and consideration of everything here, if the committee so chooses. This is where you have an opportunity.
You will not necessarily only be here once. If the committee says we have to have Bryan Schwartz and Rolland Pangowish back, we will have you back to discuss things.
In my opinion, you have a good opportunity here to bring your case forward, because we are not as partisan as the other House. We are more independent.
Senator Sibbeston: We also have First Nations peoples' interests. You are not the only ones. I totally respect you, but you have to believe that there are other people who are interested in seeing justice done and a good system in place.
The Chairman: We have a good opportunity here.
Mr. Schwartz: May I take "yes'' for an answer? In fact, it is good to hear that there is some interest and an open mind. The prospect of coming back is something we were thinking of raising ourselves. There is a tremendous amount of detail here. We are saying it is premature now, but if you get to the amendment stage we would like a chance to talk about it. It certainly relieves us from having to try your patience too much this evening.
The Chairman: We will try your patience.
Senator Chaput: I would like to ensure that I understand, so I will give you a quick picture of what I have understood so far. You are quite satisfied with the joint task force report and you were expecting the bill to reflect what was in that report.
Mr. Schwartz: That is right.
Senator Chaput: You were also expecting more consultation and you did not get it.
Mr. Schwartz: That is right.
Senator Chaput: You perceive Bill C-6 as not being fair. You perceive it as being biased. It will not be more efficient. It is perceived as having a lack of integrity and a lack of independence. So far, do I understand correctly?
Mr. Schwartz: That is correct.
Senator Chaput: You talk about the definition of a claim and the exclusions, access to the tribunal, the caps to the claims, and many other things. Here is my question: If you were, or we were, or whoever, to be returning to the table to look at amendments, are there some negotiables and some non-negotiables in what you have told us tonight?
Mr. Schwartz: I have to be careful what I say because I am not a senior political authority for the Assembly of First Nations, but I can tell you that there are negotiables. Just because the joint task force had one particular formula does not mean that is the only way to achieve a result. For example, we had one system of creating independent appointments. Are there other ways of doing it? In fact, what is in the Yukon agreement is better than what is in the joint task force report. There are different ways to achieve the same end. The end is what is important. If there are different ways to get to the same end, then of course we are open to them. Even on the toughest issues, such as fiscal framework, when we were at the joint task force report we tried to solve the federal government's problem. We recognize that the federal government has a problem. Some people might say that these things have been building up for decades and they should all be resolved quickly. We were prepared to recognize that the federal government has a problem trying to pay out everything right away. We tried to solve their problem. That would be the spirit with which we would go back to the table.
Senator Chaput: Are some of the issues — claims, the cap, whatever — negotiable?
Mr. Schwartz: Some concepts are not negotiable. It has to be independent. Are there different ways to achieve independence? Sure.
In terms of timeliness, we had a model of a joint task force report. I will give an example. You have one meeting at which the commission could explore whether alternate dispute resolution would work and then you could go straight to the tribunal. The federal government enacts a different model, in which timeliness is thrown out the window. There is actually a clause, I think it is 30(4), which indicates that the minister can basically hold up a claim forever. I am not making that up. That is what it basically says.
How could you re-establish timeliness? There are different ways to do that. You could have time lines built into the system, for example. The House of Commons committee had periods of time under which you had to consider it. The tribunal has the authority to impose time limits. No such power has been expressly given to the commission. Timeliness is not a negotiable in the sense that a system that is not timely is worthless.
Are there many different ways to achieve timeliness? There certainly are. I know people sometimes confuse means and ends. Joint task force was one means to the ends. The ends are what we want to get. If there are ways to get to them, we would have to be pretty narrow-minded to be hung up on one particular formula if we could accomplish the objective.
Senator Banks: I have to confess to some biases and perhaps you can disabuse me of them. In my limited experience, when there are longstanding disagreements or failure to arrive at an accommodation between two or more parties, it is not possible always to put the failure to reach an agreement entirely at the feet of one party and not at the other.
Another of my biases is that the government must in the end after all be able to govern.
Another of my biases is that there are, if I can characterize it this way, fiduciary obligations going that way and there are fiduciary obligations going this way. The government has fiduciary obligations under land claims treaties, but it also has fiduciary obligations to Canada, to the Crown, to all the people.
I also see — and perhaps you can correct me on this, because I am certainly not an expert — a difference between the kind of dispute resolutions to which you have referred that are contained in implementation agreements, as opposed to agreements that are other than that. To use the Nisga'a treaty, which Senator Sibbeston or Dr. Schwartz used as an example, it is true that the Nisga'a treaty has within it dispute resolutions that involve the appointment of independent participants in the process, but the Nisga'a treaty itself was arrived at simply as an agreement between two parties. It was not arrived at as a result of anything having to do with independent arbitration or dispute resolution involving third parties.
Given all those biases, my view is that at the moment it may be the case and it is, I suspect, the minister's view, though I should not put words in his mouth, that this backlog that everyone is worried about and wishes were not there can best be solved by taking the bit in one's teeth and saying, "Here is how we will do it and damn the torpedoes.'' The minister believes, I think, that Bill C-6 is something that will, to some degree, clear the logjam. That is a bias I have. However, the main problem that I can see — and let me just put a parenthetical question here — is that it seems to me that your committee can do one of three things with respect to this bill. It can recommend that it pass; it can recommend that it be defeated; or it can recommend that it be amended. I do not think that there is a fourth recommendation, to go back to the table, unless I do not get it. However, that might happen.
The main impediment I can see is the lack of a hammer that occurs when a First Nation makes a claim and has to establish — which has been the policy of the Government of Canada since 1982 — that it has a lawful claim by some means. That is not a surprise to anyone. That is not new. Your point, if I understand it correctly, is that when that is brought to the commission, absent the commission agreeing it is a lawful claim, then if the claim happens to amount to more than $7 million, you are out of luck, save going to the courts. There is no longer a tribunal to which you can go, assuming your claim is $7,000,001 or more, which can say, in either a binding way or unbinding way, "Just a minute, there is a lawful claim here and you have to deal with this.''
Bearing in mind the fiduciary obligation going in both directions, is it reasonable to ask that there be no limit on the claims? If not, is there a magic number? Should there be any limit on those claims at all or should it simply be removed? What implications do you see on the other side of the fence that there would be for that?
Mr. Schwartz: I will respond briefly to your biases. It is certainly fair to say that you cannot always selectively blame one party or the other when there is failure to agree. In this case, however, after there was an initial agreement, there was no further discussion on the part of the federal government. To be more precise, there was no further consultation on the part of the federal government. There were talks in which we were told, "Consultation is over, people, and we will give you a heads-up on what we are going to do, but we are not going to engage in a partnership with you any more.''
From our perspective — and again I would invite you to have a look at if from your own more dispassionate perspective — there was not a symmetrical situation there. We had sat down and negotiated with the federal government and worked something out. When the federal government had a problem, instead of coming back to us and saying, "Okay, let us work on it some more,'' discussions ended. With all due respect, I think there is far more fault on one side than the other. If we had had a chance to have that further discussion, and we had proved intransigent or unreasonable, then fault could be apportioned accordingly. Not to be given a chance to try to work out the remaining problems seems to me a genuine fault on the part of the federal government. We actually suggest that it was unlawful on the part of the federal government.
Senator Banks: I have a mechanical question on that. If Joint Task Force 2, JTF2, had been agreed to by everyone in sight, would the negotiators have had to go back and have that ratified by anyone before they signed the agreement, or could the negotiators have simply signed the agreement?
Mr. Pangowish: Are you saying in terms of the joint task force report?
Senator Banks: No. At the end of the joint task force, we all agree on everything. On the next morning, can the negotiators who undertook the JTF negotiations sign the deal, whatever the deal is? They would have to ask someone, would they not?
Mr. Pangowish: Yes.
Senator Banks: The same thing is true on the other side of the fence. The other guys who were negotiating with you had to ask someone. The government.
Mr. Pangowish: I did not get a chance to go through the entire background. Of course, initially we were dealing with Minister Irwin and then Minister Stewart. Minister Stewart was adamant that it was a joint process and we were working together and this process was going to be completed together. Her commitment was that we were going to take this right through the legislative process. That changed abruptly, which was part of it.
When the task force report was tabled, it was not considered to be a final report. We thought there was going to be further work on implementation and on other aspects, such as filling in some of the details, but that never came about.
In May of 2000, the new minister, Mr. Nault, announced the basic outlines of what the federal government was proposing. Of course, we looked at it. We saw the shortcomings from the joint task force report, which is why I have brought this correspondence. We sought answers for two years. For example, we asked: Does this cap accumulated interest and legal costs? We could not get a clear answer. We began to suspect the federal people did not know what they were really doing. Then, we got an abrupt answer finally in February of 2002 that simply said, yes.
Senator Banks: Said "yes'' what?
Mr. Pangowish: Yes, interest is included, effectively making the cap even lower.
I wanted to provide some context for the feeling of disappointment that we thought we had something new. During the joint task force process, the task force was touted by the minister and deputy minister, who were very supportive of this process, as the way of the future. They said, "This is partnership and this is how we work together,'' for the first time in history. It was encouraging at the time. We felt an example like this specific claim dealing with lawful obligations, if we could make this step and deal with these, then with regard to more difficult issues there may be hope to resolve them in a reasonable amount of time. I think that was the spirit of the joint task force at the time.
Senator Chaput: When you noticed these shortcomings and you asked questions regarding the cap, did you also ask questions regarding other issues?
Mr. Pangowish: Yes. We carried on with a list of about eight issues. I would have to go back to the correspondence I have provided.
Senator Léger: Why is Bill C-6 so far away from the joint task force? Does Bill C-6 totally disregard the joint task force report? You said there were shortcomings in the joint task force. That sounds now as if it was not perfect. Is Bill C-6 totally cut off from all the work that had been done in the joint task force? The first thing I had written down was: Is there anything good about Bill C-6? That is all I can say.
Mr. Pangowish: Initially, our concern stems from the fact that under the task force report no one could guarantee that even the task force report as framed would be successful or that it would work. We thought there was a good chance of it working. It was contingent upon joint agreement that was jointly developed. The chiefs had accepted it in principle. They wanted to see the federal response.
Senator Léger: Did I understand that the task force consisted only of chiefs?
Mr. Pangowish: The task force was officials and technicians from both sides. The report was tabled in November.
In December of that year, the Confederacy of Nations chiefs, one of the duly authorized bodies of the assembly, accepted the report in principle. Throughout the process of the joint task force the assemblies were continually updated on the progress.
The task force members from the First Nations side reported to the Committee of Chiefs of the Assembly of First Nations. The direction to the technicians came from the chiefs' committee.
Senator Léger: Is there anything good in Bill C-6 or is everything off?
Mr. Pangowish: It is hard to say. The key features we identified from the task force report. If you look at those, do you see where this falls short of those?
Senator Léger: Some must be there that are good, I would imagine?
Mr. Pangowish: At the commission and the tribunal that was the original idea of the task force. The effectiveness of it has been reduced. Our fear is that rather than saying what is good, in the end the bill, as it stands, will make us worse off than we are now. There will be less access to public inquiries. Those kinds of aspects make it worse. We are taking the risk of asking you to please not pass this bill as it stands because it needs more work.
Senator Banks: I went off on a tangent and Mr. Schwartz did not have a chance to give a 30-second answer to my one-hour-long question.
Mr. Schwartz: In terms of a process, if an individual fiduciary obligation is breached, the fiduciary must consult. When setting up a system to deal with this national problem of breached fiduciary obligations, the national system should be set up in consultation with a national organization, which is what happened with the joint task force. We believe that is a legal duty and not a matter of discretion on the part of the federal government. When a national system is being set up to deal with a system that deals with breaches of individual fiduciary obligations, there must be consultation. Consultation, in our view, and this has been explored in some of the case law such as Mikisew Cree First Nation v. Canada, does not mean a chit-chat and then we do what we want. According to the courts, it means that there must be a serious attempt to address the substantive issues raised. Consultations in some context may mean that we talk and then do what we ultimately decide upon in our best lights but not in the context of First Nations when there has been a breached fiduciary duty. The duty of consultation does not mean that everything we say has to be accepted; the courts are clear that the federal government does not have to accept everything we say. However, it should have included a willingness to substantively address our issues.
In the course of answering your question, I will deal with Senator Léger's point. Why was it so bad? We did not talk. There are whole new issues and ideas in Bill C-6 on which we were never consulted. If someone had asked if it was okay to make the bureaucracy of the commission an extension of federal public service so that there is complete mobility between the existing federal government and this commission, we would have said no and explained why. We do not want people who have had a career of denying claims to have a right to preferential hiring under this supposedly independent commission. It is not just the tribunal and the commissioners at the top level that are not independent, but also the employees.
There are structured settlements of $7 million. If they asked us if that was reasonable, we would have simply said that it takes 15 years before you can file a claim, then it may take 10 years to settle the claim and then they will structure a settlement of only $7 million, on which we would lose some interest. If we had had that discussion, they may have said that we were right because it was not reasonable but they never asked.
In preparation today, I read through the bill and, I promise you I will not do this, I could go through clause by clause and compare it with the joint task force. I found one improvement and I would guess that I found 80 to 100 steps backward. The one improvement is a reference to leasing in the criteria that was not there before. I was trying to find something that was an improvement. The rest is what happens if the federal government is talking to itself. Everyone with an issue is worked through the federal system and a bureaucrat who has spent his career defending specific claims decides he does not want to be in a position where he has to respond within six months. He wants to take as much time as he wants. Someone else has a problem with the pace of settlement and somebody else with any other different issue. The federal government was negotiating within itself. It had no reality testing by coming to us where we were in a position to object as partners, and this is what you get.
It is a fairly simple paradigm — we talked, we got something pretty good, a joint task force. Is that the last word? No, I am not saying it is. We are saying the opposite. We want to get back to the table. When people did not talk, the process went seriously off the rails. The lesson to us is: Once it is looked at thoughtfully, we should get back to the table and we think this could work.
In terms of fiduciary obligation working both ways, the federal government clearly has the responsibility to all Canadians, not just to First Nations. I can make that concession because it is reasonable and because the Supreme Court of Canada said so in the Eastmain case.
However, it is not simply a "both ways'' matter. We have to be careful. Fiduciary is a special term, which should not be used casually. The obligation to the general population is a solemn one but the obligation of a fiduciary obligation is a special one. When you have breached an obligation with respect to dealing with people's lands and assets, in a position that is a special and distinct and especially stringent legal obligation, that goes beyond ordinary politics and the ordinary duty of the federal government to represent people. It has an especially high priority so it does not cut both ways.
You asked a hard question about numbers and any limits. I do not have a mandate, to be honest with you, to concede that any individual claim could be excluded. I can say that at the joint task force report we tried to come up with an idea to have a limit on the aggregate amount of money to be spent over a five-year period. If we reached that, the tap would be turned off in the sense that you could not access the tribunal. Are there other ideas? First Nations have a history of cooperating with tiered systems of settlement. When treaty land entitlements arose, they were not all settled in one day. There was a process. If you knew you were to receive interest and there was an orderly process limiting this, we would certainly try hard to agree on some sort of orderly and measured way of dealing with them.
Senator Banks: Would you talk a little bit about the difference between what was in JTF2, which was turned off until we get some more money, and what is in Bill C-6, which is: Here is how much money there is but when the well is down to here, if the next claim is here, then we cannot deal with it. It is the same thing, is it not?
Mr. Schwartz: We call it FYCA, for "five-year cumulative amount.'' There was a cap on aggregate spending but not the size of an individual claim.
Senator Banks: In Bill C-6 the only claim affected in term of its individual size would be the last one that happens to be larger than whatever is left in the funds, if I can use the word.
Mr. Schwartz: There is a cumulative component to Bill C-6. However, it is in addition to the individual claim limit. Therefore, you have two separate components happening in Bill C-6, where there was only the aggregate limit in the joint task force report. If people want to sit down and think creatively, there are other ways to go about it. There are problems with the individual cap in terms of the exclusion of entire categories of claims with nowhere else to go.
Senator Banks: Does it have to go away?
Mr. Schwartz: In our view, within some sort of fiscal framework, and we proposed one, all claims should ultimately have access to the tribunal. Is there a better alternative than going away entirely? Even what we have now is a better alternative, which is a large claim that at least has access to a commission report. This is one of the amendments that the Canadian Alliance and some other parties proposed. For larger claims, the Canadian Alliance would have raised the cap to $25 million and larger claims could still access the independent report.
I want to be clear. I have no mandate as a technician to agree to any cap. The position of the organization is that we do not want a cap on any individual claim. Are there ways that you can limit aggregate spending without doing that? We tried to come up with one. That is as much as I can say at this time.
Mr. Pangowish: Our concern was the distortion of claims, especially in terms of the fiduciary obligations that are involved. This capping of individual claims creates a situation whereby the applicant must sign a liability waiver to access the tribunal. In that way, the Crown would not be liable for an amount greater than the $7 million. I ask you to imagine the chiefs being asked, on behalf of their people, to sign this waiver, which is signing away something that may be important to a community because it has been in their hearts and minds for such a long time. Some of these claims are 100 years old and older. It becomes important to a community because it is more than just money we are talking about.
That is the other aspect, I guess. The First Nations are more concerned about land because they need it. Many do not have enough land to meet their housing needs.
In that case, you are talking about provincial involvement, which is strictly under the commission. We are trying to convey that First Nations made a number of reasonable compromises so that they could achieve the establishment of an independent body. If you read the 1990 First Nations submission on claims and compare it with the task force report, you will know the items that the First Nations conceded. They were trying to do something serious and real here. I think that is important to take into account.
The Chairman: Thank goodness we have our excellent researcher here who has done a lot of good work. She reads in layman's terms exactly what you are discussing here. It states here, and this is what the bill means, that at a claimant's request, the commission is obliged to refer the issue of compensation to the tribunal, if it is satisfied that the claims compensation component is complete and has been considered by the minister during the dispute resolution process. Dispute resolution processes have been exhausted. Only monetary compensation is being claimed. The claimant has waived compensation excess of the claim limit, and the amount remaining in the compensation funds for the fiscal year is at least equal to the claim limit using the bill's prescribed calculation.
That is exactly what Mr. Pangowish was saying. This is what it is.
I have one last question, hopefully, on a more positive note. Mr. Schwartz said the title was boring but the bill, An Act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing negotiation resolution of specific claims and to make related amendments to other Acts, do you at least agree that a Canadian centre for independent resolution is a good one? They want to establish a centre where you can go, from what I gather.
Mr. Pangowish: From what I have heard from most First Nations, they find it hard to take the title seriously. The idea was an independent claims body. The title does not convey the intent of what First Nations have been seeking for many years. It is a little bit of a convoluted title, to First Nations.
Senator Eyton: I am new to these deliberations, but I sit here with a sense of wonderment of where we are at today. I look back on 30 years or 10 years or five years of discussion and a bill is put before us. I guess it has gone through first and second readings. It has a little momentum behind it. You appear before us today to say that it may have saved 15 or 20 fundamental principles in Bill C-6, and you disagree with the vast majority of them in one way or another. I find it appalling, and I sit here and say, how did all this happen? You tried to explain it but I am sure there is a fault on both sides. Things like this just do not happen.
I have done a lot of negotiation over the years, and I can tell you that I would never sit at a table for even two years on any issue, no matter how important. There comes a time when you say, enough. It is because, in any discussion, there are two fundamentals. One is that time is money. There should be a tremendous impulse on the part of the parties, if they want to do things fairly and rightly, to make an award of $100 today, knowing that in 10 years from now that $100 is worth maybe $20 or $23 and, in particular, if you talk about the cap that penalizes the interest carry on a claim. There should be some urgency.
The second, which comes out of my experience in negotiating, is it is almost impossible to come before anyone and say, well, you have 20 points embedded in the bill, and I disagree with 15, because you will not get it. It will not happen. It is not really a question, but an observation, that it seems to me that First Nations should be looking at the three or four major points, the ones that hurt the most, the ones that are the most egregious, and try to get them changed in some of the ways you are suggesting.
To look at this long catalogue of things that are wrong, anyone would throw up their hands and say either we will pass the bill and forget the recommendations, or they will say we will not pass it at all and go off into the wilderness again for another 10 or 15 years. Neither of those is acceptable to anyone, it seems to me. It is less a question than a comment. There was a question of what are the few important issues where you can suggest change where the committee may have some role in making or suggesting amendments
Mr. Pangowish: Many of our chiefs will be appearing before you, hopefully. Hopefully, our national chief will come before you to lay out our exact position.
What we came here to do was try to provide you with some background on the bill itself and the process that preceded it and the technical problems we see with it. We are not here to say that it is all negative or positive. In Mr. Schwartz's legal analysis we are looking at 9 to 11 fundamental points. He was able to get through four with you.
The Chairman: He will be back.
Mr. Pangowish: We are hoping that you need this context to be able to better relate to the testimony and the evidence you will be hearing. We hope it helps in terms of having a context from which to approach it.
Senator Eyton: It is discouraging.
Mr. Pangowish: Our primary concern is that with the bill as it is, if that were to be the bill that we end up stuck with, we are looking at another generation of not settling these. It is not only our interests involved but also the interests of Canadians because these debts are a burden of all Canadians. The delay means each of these larger claims especially — the interest —
Senator Eyton: There is a greater sense of urgency in the Senate because in 10 years, most of us around the table will not be here, whereas you may be. I do not know. Certainly, in the other House many of them will be but our time is limited.
The Chairman: If this bill is thrown out, are you satisfied with the way the status quo is now?
Mr. Pangowish: What we have been saying is, no, we do not like the status quo but it is better than what this bill would be.
The Chairman: There is one thing the joint task force agreed with in this bill. The short title of this bill will be cited as the specific claims resolution act, which is exactly what was said by the joint task force. You said the bill would provide that the act might be cited as the First Nations specific claims resolution act. There was one thing on which you agreed. That is a start.
We have had a good beginning on the study of this bill and how we can look at it. I am sure we will be calling you back for further dialogue and discussion. I would like to thank you both for coming here tonight. It is important. I would like to compliment you both. You have started a good understanding of the First Nations issues on these types of things.
The committee adjourned.