Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 15 - Evidence
OTTAWA, Tuesday, May 13, 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 9:18 a.m. to give consideration to the bill.
Senator Thelma Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Please proceed Mr. Erasmus.
Mr. Bill Erasmus, Regional Chief, Assembly of First Nations: Madam Chair, honourable senators, I understand that you have a copy of my presentation. I apologize for not being able to provide you with more copies. I will read through the presentation after which I will be prepared to answer questions.
Thank you for having us here today to address this legislation before you. The future of this long-standing issue rests in large part in your hands.
I am the vice-chief for the Assembly of First Nations. I am also the national chief for the Dene Nation. Unfortunately, the national chief of AFN Matthew Coon Come could not be here today.
As the chair of the chiefs' committee on claims, I have been involved with this file for the last number of years and capable of having this discussion with you.
The primary problem with the legislation before Parliament is that it will not achieve the stated objectives of making the process more speedy, fair and effective. The conflict of interest is not eliminated and the ability of government to delay the process is preserved. The financial limitations imposed will limit the ability to address the growing number of claims.
The claims that will have access to the process are severely limited. The bill will eliminate from consideration most treaty-based lands and unilateral undertakings by the Crown.
You should note that we have only addressed the most blatant problems with the bill. It is rife with many other shortcomings that we will not get into here.
Although we were hopeful when the bill was first introduced, our failure to find any positive departures from the status quo have been confirmed by almost every First Nation and independent observer with whom we have spoken. We can only ask that you seriously consider our analysis and recommend that the bill be completely reworked through a joint process.
If you listen to the diverse First Nations concerned with this bill, you will find that almost no one can support it in its present form except the few federal employees who developed it. There is no grass roots support of which we are aware for this bill in its present form.
Your legislation summary refers to the joint task force report and indicates where there are problems and unclear provisions in this bill. It notes many omissions including the lack of a non-derogation clause, the lack of time frames and the apparent absence of clear rationale for many provisions. We can only thank the Parliamentary Research Branch for its objective and reasonable observations on this bill.
Our conclusion is that the bill is so seriously flawed that this committee cannot fix it; it requires a major overhaul. There is little sense in attempting to recommend specific amendments to you as they would be too extensive for you to adequately consider in the time allotted. We have asked the government to withdraw this bill and return to the cooperative and constructive approach that characterized the joint task force process.
Bill C-6, the Specific Claims Resolution Act is of great importance to most First Nations as many have lost lands, money or have been otherwise deprived by the government's non-fulfilment of such lawful obligations.
It must be emphasized here that most First Nations do not consider parliamentary hearings to be adequate consultations on such a complex bill. First Nations do not in any way give their consent to this measure. This is very important for you to understand, as we believe that the way this bill is being handled is not consistent with the high standard of conduct expected of a fiduciary.
Many of these claims stem directly from the fiduciary relationship of the Crown with First Nations. Beginning with the Guérin decision of 1984, the courts have clearly held that the honour of the Crown is always at stake in such matters. Our understanding is that a fiduciary should never place itself in a conflict of interest.
This bill, in its present form, will institutionalize the conflict of interest and cause delays, which are key problems with the current policy process. This is contrary to equitable principles and all accepted norms of natural justice. Our concern is that if this bill is passed with all the serious flaws we have identified, many more generations to come will not find justice through the Canadian system.
To begin with, outstanding legal obligations must take priority over discretionary spending. It appears that the bill severely deviates from what was recommended by the Joint First Nations-Canada Task Force on Specific Claims report of 1998 for purely financial considerations. A federal policy regarding First Nations has historically been driven by our desire to limit liability and expenditures.
Federal officials point to fiscal realities. There appears to be no balance of interest in this bill. It is aimed at managing claims and federal spending with little consideration given to addressing the growing debt against Canada that these claims represent.
The AFN has always been willing to cooperate in development of a reasonable but responsible and expeditious fiscal framework. However, it is neither reasonable nor responsible to believe that paying 10 cents on the dollar for outstanding liability will fulfil outstanding lawful obligation. The joint task force approach provides the best opportunities for First Nations and Canada to implement a constructive and collaborative effort that has been proven to work.
First Nations sacrificed many basic principles in reaching an accommodation of federal interests. Unfortunately, it does not appear that the federal government is prepared to make the same accommodation as its officials recommended in 1998.
Since the Oka crisis of 1990, the AFN has tried to work cooperatively with Canada. However, the effort came to a close in 1998 when the federal government failed to respond effectively to recommendations that were jointly developed and agreed upon by our respective officials. It has proceeded unilaterally in proposing this bill.
We are now concerned that this legislation will create a situation where First Nations may well be worse off than under the present policy process. For example, claims that exceed the proposed cap will not have access to public inquiries, as is the case at present under the interim Indian Claims Commission.
We fear this bill will only serve to outsource and institutionalize the same conflict and delay that characterize the existing process. This bill will legislate the federal government's right to delay the processing of claims thereby strengthening the conflict of interest rather than eliminating it.
The proposed process for appointing commission and tribunal members will be based upon the same patronage system with which so many Canadians are disgusted. The same minister who is charged defending the Crown against such claims will be recommending the candidates for appointment.
Commission and tribunal members would also be subject to reappointment after relatively short terms of office. This fact, combined with the minister's ability to delay claims, will effectively give the minister remote control over the entire process. We must point out that this unilateral approach is not only contrary to the duty of a fiduciary where grievances arise, but is not consistent with the federal government's current practice in large land claim agreements wherein it is generally provided that those appointed to facilitate conflict resolution are selected through either a joint or neutral process.
Another key area of concern with Bill C-6 is that the definition of a ``specific claim'' is more restrictive than the current definition in that it excludes unilateral undertakings of the Crown regarding modern land claim agreements and narrow specific treaty obligations to land or other assets. The joint task force had built upon the existing criteria in light of case law by adding the breach of fiduciary obligations.
Claims arising from unilateral undertakings of the Crown are excluded from the bill. This will be devastating for many First Nations, especially in provinces where the pre-Confederation practice was often characterized by such undertakings.
Under this bill, First Nations will be required to waive federal liability over $7 million to assess the tribunal. It not only excludes most claims from access to the tribunal; but it also removes the incentive for effective negotiations through the commission.
The lack of incentive to reach negotiated settlements is one of the biggest problems with the current process. There is no provision to address the larger claims that will not have access to the tribunal. As you know, the courts are not a viable alternative for First Nations who cannot afford the expense and delay that characterizes the judicial system.
Another negative feature of litigation is the government's ability to invoke technical defences such as statutes of limitations or latches. That is completely unfair as First Nations have not been able to bring forward claims in a timely way as it was illegal for First Nations to retain legal counsel to pursue claims up until 1951.
The minister of Indian Affairs has said that he does not want to see First Nations spending valuable resources on lawyers and consultants. However, if First Nations have no alternative but the courts, many more lawyers and consultants will be required.
We believe there is a legal duty on the part of the federal government to consult with First Nations regarding the detailed provisions of this particular bill. Therefore, we do not believe that this bill is lawful or consistent with the Crown's fiduciary duty. We cannot have a system that perpetuates delay in addressing claims.
The fiduciary duty is not just a general fiduciary; this relationship requires a national system consistent with the highest standard of conduct required.
There has been no effective dialogue since 1998. First Nations were not aware of the contents of this bill until it was introduced in June 2002.
The parliamentary committee is no substitute for adequate consultation. The minister promised our leadership and advised many First Nations that we would have ample opportunity to bring forward our concerns to the standing committee. We are concerned that adequate time and resources are not being devoted to this important issue. Many chiefs do not believe this committee will be able to adequately address the serious flaws in this complex bill.
We all have a common interest in the fair resolution of these claims. We should put injustice behind us. First Nations have been denied the ability to become self-sufficient in great part because lands or other assets have been denied them. No Canadians would accept such a situation or treatment by any government.
We have been trying unsuccessfully to re-establish a partnership on this issue. Yet, despite its rhetoric of partnership and cooperation, this government has refused to work with us in addressing the serious problems with this bill in spite of our repeated requests to do so. This bill is based on patronage, not principle.
Many First Nations are suffering due to these legal wrongs. The government is saying ``no'' to its own red book promises, which clearly said the development of an independent commission would be a joint undertaking involving the joint appointment of its members.
What message is the government sending to our young First Nations people when they renege on a joint product and twelve years of good faith negotiations? It appears that government has other priorities than fulfilling its lawful obligations.
In conclusion, it is our view that this legislation is taking the current problems, disguising them, outsourcing the process and entrenching it in legislation. Therefore, this bill cannot fulfil its stated objectives of making the process more fair, effective and efficient.
We call upon this committee to serve its purpose as a check against unilateral imposition of arbitrary measures. Do the right thing and ensure that this legislation is overhauled in a manner that will make it acceptable to First Nations.
We refer you to the 1979 report of Gérard La Forest concerning the issue of an independent mechanism for specific claims, wherein he repeatedly stated that any system must not only be fair, it must also be fair to the Indians. We are here to tell you that this legislation is not seen to be fair. We would also remind you that justice delayed is justice denied.
Since 1993 it has been my privilege to chair the committee on specific claims. Our national body was put together in the early 1990s. We began at a point where our First Nations wanted us to deal with all of the issues before them, which included specific claims, comprehensive claims and treaties. That was our initial approach.
Mr. Pangowish and Mr. Schwartz have appeared before you and given you some background and problems that we experienced in our early days. They spoke of our early dialogue and how we had to compromise and bring our people along.
Initially, our people did not want to get involved in this process because it was myopic in their view and did not have the larger scope and focus that they wanted. However, in meeting with Minister Irwin, we found that he did not have a mandate to deal with all of the issues. His promise to us was to deal with specific claims and to put the movement there and take us through the process. After that, we could move on to comprehensive claims and then to treaties. That is the approach we took in 1996.
We were delighted to have a joint process, the first national process of its kind. Once again our people were cautious. In the end, the report came to us and upon studying it we endorsed it because we wanted to move on. We wanted to do the right thing. It got hung up within the system. I know you have had a chance to question the minister on it and some of his officials.
They are treating this, and I may be wrong, but I have read the verbatim report of your committee, as an ordinary piece of legislation, where a committee goes forward, does a report, comes back, and in the final analysis the government of the day can change and come forward with legislation appropriately as it sees fit.
We believe this instance is different. There is a clear trust relationship. There is a fiduciary relationship. We are dealing with constitutional matters that are entrenched either through section 35 or 91(24). These are matters that are debts, Canadian legal obligations, moneys and lands owing to our peoples over long periods of time.
Nowhere in Canadian history has Canada left a debt unpaid. In this circumstance Canada has set up a system where it determines the process and the outcome, and in many instances refuses to pay its debt and gets away with it. This is not an ordinary situation.
We also begged to differ with the ministers` statement that the leadership and the grassroots people are divided on this issue; that is not the case at all. They made the point that Mr. Johns was commissioned by the government to travel across the country and speak to us. He made it known that his visit was not consultation although during our discussions we did try to find some middle ground. Clearly, we wanted to sit down with Canada to bring this bill forward so that we would have something unique.
That is our dilemma today. We want to be positive and constructive and make this work. We have many problems, which we are open to discussing with you.
My colleagues have spent some time with you. We have to state that this is a lengthy discussion. I know they did not have an opportunity to go through all of the points that they had. The question today is whether we still have that opportunity. We will leave that with you as to how you want to go forward.
The Chairman: I have to apologize. That will not happen today because I think the most important thing is your presentation, Mr. Erasmus.
Before I invite my colleagues to ask questions, I would like to ask several.
I have not been involved in any consultations concerning this proposed legislation. It is my understanding that this proposed legislation will create a centre to deal with land claims, a one-stop shop if you will. Do you agree with that? It is also my understanding that this centre will be the beginning of a framework to start institutions for self-government.
Would you like to respond? I would like to hear your view. Before going into the process, let us clear that up.
Mr. Erasmus: My understanding is that this proposed legislation is designed to establish a commission and a tribunal that will have the opportunity to bring the cases forward. I do not see it as a one-stop shop because it does not allow all of the potential claims to come forward. In fact, we find that it may hinder the process to such an extent that there will be even fewer claims coming forward.
The Chairman: You are getting back to process. The minister has stated that this centre will be the beginning of self- government institutions. This is what the minister has stated. What is your response to that?
Mr. Erasmus: We do not see this as an issue of self-government. It is not the ability for us to develop a capacity and to exercise the inherent right, et cetera.
This is supposed arm's length from First Nations and from Canada: an independent tribunal and commission that can fast track and have a hammer so that Canada no longer delays the process.
You may be confusing this with the fiscal relations piece of legislation. I think that is meant more to help bring up the standard and to provide financial incentives in our communities.
The Chairman: The specific claims centre is to be comprised of a chief executive officer and two divisions, the commission and the tribunal. On the minister's recommendation the chief executive officer and all division members will be appointed by the Governor in Council.
The joint task force proposed that appointments would require joint AFN-ministerial recommendations, taking into account regional representation. AFN witnesses before this committee and in the other House have stressed that the Bill C-6 appointment scheme represents a major concern for First Nations. The minister has suggested that the AFN is being consulted about potential appointees.
How does the AFN intend to respond to the minister's invitation to be involved in suggesting names of possible appointees?
Mr. Erasmus: In our initial talks, and through the joint task force process, we were to set up an independent body for First Nations. We envisioned an independent body to which we could bring our concerns.
Perhaps I misunderstand, but we do not see it as an exercise of self-government but more to provide us with the opportunity to move on these lawful obligations.
The Chairman: You are not seeing this as what they claim here, a centre?
Mr. Erasmus: It may be a question of terminology. ``Centre'' means it is a place, with a function that can provide you an outlet, as opposed to the courts.
The Chairman: You do not see it as such?
Mr. Erasmus: It is an outlet as opposed to the courts, but it is not a centre that provides us with the ability to exercise governance on our part.
Mr. Bryan Schwartz, Legal Counsel, Assembly of First Nations: Honourable senator, you mentioned one-stop shopping. Many bands cannot get their foot in the door even though they have specific claims because the criteria have been narrowed. Once you get in the door, you only have access to the tribunal part, if you are below the cap. If you are above the cap, you do not have one-stop shopping for binding dispute resolution. Ultimately, if you want binding dispute resolution, you would have to go to the courts.
In terms of evolving institutions of self-government, I will not belabour the point because you have raised it yourself, but it was supposed to be partnership here, in policy as well as in appointments. The joint review was supposed to be a joint decision-making body.
If you have a partnership bill that is produced and every reference to the Assembly of First Nations is stripped from the bill and just the minister is left, it is not a good signal for collaborative policy making.
[Translation]
Senator Gill: I would like to mention I have been a specific claims commissioner during several years. The commission thought the agency was not efficient in the sense that claims that were supported by the commission were often not supported by the Department of Indian Affairs. We were going nowhere, and there was a big claims backlog.
Our aim was to have an institution that could be fairly independent and decently objective. A few years ago, we were already talking about having an independent tribunal whose judges would be appointed jointly by the government and the First Nations.
I am told that Bill C-6 will create such a tribunal. But its objectivity is doubtful and the judges are not appointed fairly by the First Nations and the government. I have to tell you we have two interpretations. In my community, we have been telling the same things for years. They tell me they want to take care of issues for us, but we want to be involved in the solving of our own problems.
The department and the government are telling us they will try to solve the problem. Even if the chiefs disagree, they want to take care of everything because poverty will be a lingering problem. All bills are included.
It seems we have two approaches. The chiefs do not want these bills for all kinds of reasons I would like to know. This does not fit well with the trustee responsibilities of the government, because I understand the chiefs say they are not consulted enough. Stakeholders are not consulted. But I am told there have been 300, 400, or 600 consultation meetings.
On Parliament Hill, they think the Indians or the chiefs are those who disagree. I may be oversimplifying, but that is what I understand. Could you give us your views on Bill C-6. We will talk about the rest in other meetings.
[English]
Mr. Erasmus: There was no reason for us to exaggerate or not tell the truth. We have all been involved in undertakings for many years. Our own reputations and names are at stake. We would not come here and not tell you the truth if we were happy. We very much want to be happy. We started this process together. We were delighted that we were able to have that opportunity. The discussions were very frank. We did not win on all points; Canada did not win on all points. We understood that recommendations would be made and we would continue to have discussions and would walk through this, including the bill, to the end. That was the agreement. That did not occur, and it is very unfortunate.
The other point is that never was this tied to any other piece of legislation. There is now a suite of legislation before you. This was never tied to that. These discussions began well before the First Nations Governance Act.
We were working in a certain mind set at that time. When you hear the minister comment on legislation, you have to separate this legislation from other pieces of legislation. They may be interrelated, but there is no intent for them to go hand-in-hand. I would like to make that clear.
What we are hearing or seeing in the papers is that there is great distrust. We were trying to bridge that gap. We were trying, for the first time on a national basis, to work through this process with Canada.
We understand that the Senate has the ability to commission independent studies or while they are in session. We officially request that you look at the suite of legislation and ask whether or not it adversely affects our treaty and Aboriginal rights. We would like that question brought forward to you and your committee.
The days of telling our people how we ought to live are well behind us. We have demonstrated that we have the ability to govern ourselves. Canada agrees that the inherent right does not stem from the Canadian Constitution; it is inherent and within us.
The task today is to sit down and work out arrangements and then implement them. The beauty of this proposed legislation, if dealt with adequately, is that it can provide people with the capacity and the tools to develop as First Nations.
It is not like this money is leaving the country. You know exactly where the money will be going. When it comes in our pockets, it will go back into the Canadian economy, and nine out of ten times it will go into non-First Nation pockets because we have not yet developed the institutions to keep it in our own pockets. It is not like you are giving that money away, it is building the Canadian economy. We are saying that, good Lord, if Canada owes this money, let us develop a way to move it quickly so that Canada can get rid of its debts.
[Translation]
Senator Gill: I have been told that Bill C-6 has an impact on constitutional protection of aboriginal people. What do you think? Does this bill really have that kind of an impact on First Nations?
The Senate has a committee on legal and constitutional affairs. If this bill is passed, what will its impact be?
[English]
Mr. Erasmus: Do you mean if it is passed in its existing form? I believe our concerns were brought forward last time. Many of the claims will not have the opportunity to come before the commission or the tribunal. That is an injustice in itself, because people have waited. The pre-Confederation claimants have waited for over 100 years.
I am not sure if I am clear on the question of whether or not there is constitutional protection. The way I understand the process is that people lost lands and assets for a number of reasons. Canada has the ability to rectify that situation. It provides the incentive for people to apply themselves in a number of ways.
Again, this is not an exercise of governance. Perhaps Mr. Schwartz or Mr. Pangowish would like to add to this. They have studied the bill and can read the finer print.
Mr. Schwartz: On the defensive side, the joint task force report had a non-derogation clause to protect Aboriginal treaty rights. The federal government unilaterally removed that, like a great many features of the joint task force report, and there is no longer a non-derogation clause.
In terms of the extent to which these issues affect constitutional rights of Aboriginal people, I will try to give a short answer but touch on the key points.
Many of the lands and assets that are involved in specific claims are rights that exist under treaty or Aboriginal right or originally existed under Aboriginal rights and became a reserve and are still, to some extent, protected under section 35 of the Constitution. To the extent that there is not a fair and effective system to deal with breaches of those rights, that raises serious constitutional concerns.
The fiduciary obligation exists under the Constitution of Canada. Section 91(24) creates a fiduciary relationship that does not always produce binding, legal obligations but does when there is mismanagement of lands and assets, for example, in the recent Saskatchewan case concerning two-thirds of the reserve land. There is a legally binding obligation, which has a very heavy constitutional component because it arises out of section 91(24) to rectify that situation.
In terms of process rather than substance, in our view, if this bill is passed in its current form, it would be in breach of a constitutional obligation that exists on the part of the government to consult when it sets up a national system to deal with breaches of fiduciary obligations. The Supreme Court of Canada has been clear that duties of fiduciary include the duty of consultation. When you set up a national system, there must be national consultation.
The consultation was unilaterally terminated after the joint task force report. Mr. Pangowish and I were both in a room when a federal official told us that the joint task force report was the end of the consultations. Mr. Johns made it clear that his process was not consultation. Consultation involves a substantive duty to address concerns, not just to have a chit-chat and then do your own thing, so I predict there will be legal repercussions to the bill going through in its present form if that happens.
Mr. Rolland Pangowish, Director Lands and Treaties Unit, Assembly of First Nations: Although this bill narrows the definition of treaty claims from the existing policy, treaty claims are part of a good number of the claims that would be involved. Any settlement of these treaty-based claims requires the Crown to sign a release. Obviously you are dealing with the release of Crown obligations in exchange for a settlement. Obviously, constitutional issues are involved, specific treaty provisions that are protected under section 35. I think the concern about Aboriginal treaty rights go beyond that.
As legal counsel pointed out, it does relate to this fiduciary relationship and the standard of conduct articulated in the Guerin case in 1984. The highest standards of conduct must apply because of the unilateral nature of the Crown administration of these Indian lands and assets. That is the nature of fiduciary law.
The court did state that the honour of the Crown is always at stake in such matters, which is why we believe that to eliminate the conflict of interest an independent body must be independent of manipulation by the government that is the defendant in the claims.
Senator Austin: I would like to offer you a different characterization of this legislation.
At the most basic level, this is simply an offer by a federal government that is not in any sense compulsory with respect to the Aboriginal community. No community need undertake a process under Bill C-6.
For those claims already filed, the Indian Claims Commission will continue to serve. If communities do not wish to use this process then that is their privilege. It is a unilateral offer on the part of the Crown that can be employed or not employed as is the desire of claimants. I do not see any constitutional problem with that.
I understand your position to be that this proposed legislation cannot be repaired, and there is no possibility that you would sign on to the legislation as it now exists. If that is not your position, you will correct me.
I am the sponsor of this bill on behalf of the department. I saw this bill as an advance over the present process. It is not a bill that I have ever advocated as being perfect.
It is, however, in my view, a better overall process. It does pull people out of the DIAND and creates a dedicated group of people. Hopefully, they will be dedicated to their work. At least, it pulls the process out of DIAND. It allows a better kind of arms length process.
I would like your comments on that observation.
Our colleague, Senator Sibbeston, put to Minister Nault perhaps the key question during our hearings on May 6, 2003. Senator Sibbeston said regarding the question of appointments that he would like to bring forward an amendment. He wanted set forth a provision for a more formal consultation mechanism with respect to appointments.
Mr. Erasmus, you have a letter from the minister offering consultation before appointments. Senator Sibbeston suggested an amendment to the bill that would provide a legislated process with respect to consultation.
On that issue, would you comment on the acceptability of Senator Sibbeston's suggestion?
Mr. Erasmus: I am intrigued by your comments. Madam Chair, I would ask a question. Could you elaborate on how you see this as a better process than the existing one?
Senator Austin: I see it as better in key ways. I made these points in my second reading address in the Senate.
First, there is a more effective process of working with the claimants to resolve the facts that are being submitted in order to agree on a factual pattern and on the nature of the claim. There is a more effective and specific group of people dedicated to that process.
Nothing requires the claimant to go to the tribunal. If the claimant is unhappy with that stage, then the claimant does not hold a position that has been impaired.
The minister has told us that there is no time frame in the current process requiring the government to respond. In the process in the bill, the Department of Justice will have to account to the minister every six months with respect to the management of the claim.
There is an opportunity for the commission to opine on the validity of the claim and to advise the public with respect to its view when it concurs in the validity of the claim. Insofar as the members are there by virtue of appointment, on good behaviour, I cannot see any risk to the members in challenging the Crown to behave according to the conclusions of the commission. I believe in those respects, it is an advance.
I do agree with your comment that the power of the inquiries commission is being removed under this proposed legislation. Frankly, that is a power I would be happy to see included. It is not there.
I am searching for any ground to continue a dialogue with this committee that would improve this bill. Your advice to us is that you wish us to reject it out of hand and start over. I am trying to clarify those issues with you.
Mr. Erasmus: Thank you, I appreciate your comments.
It is always difficult to understand these issues. I have always tried to imagine what it is like to be a non-Aboriginal person in this country when looking at this complex situation. We have mentioned that we consider the bill to be irreparable. We went through a process together to arrive at a bill, yet it has turned out to be such a different piece of work that it is hard to imagine how it can work.
You are in a position to make change; we are not.
I can only imagine what it is like. I have never been a federal employee. I have never worked for the federal government, the territorial government or any Canadian institution.
I studied as a political scientist to try the understand the system. I believe that I have an understanding of it, but in the final analysis you are the people that can make a change.
You know the system. You know what is and is not possible. We have had the opportunity to look at this.
We know that if we make four or five strong recommendations, you would probably side with us, or it is possible that you might side with us and try to make those changes.
The difficulty is that it has changed so radically that it is difficult to find four or five strong points and strengthen them enough that our people will be happy.
We have made comments on some of the problem areas and I know Mr. Schwartz wants to add to our comments.
Senator Austin: May I interject with a philosophic comment? As a political scientist, you know that the most secure gains are often incremental in nature. They are one-step-at-a-time gains, and the big gain, or as they say in baseball, the home run, is a harder shot. Therefore, it is obviously your privilege to play the all-or-nothing suit if you want to, or to say to us, ``We are not going to like this a lot even with the following five changes, but with the following five changes, we will be willing to consider it a next step in the right direction.''
That is a philosophic approach. It is your privilege to make a decision which one you want us to consider.
Mr. Erasmus: In order to get to the home run, we need to have the same game being played by both sides.
Why is Canada making the offer? Do you not agree that there is a fiduciary duty? Do you not agree with the Supreme Court of Canada when it says that in instances like this, meaningful consultation is required and accommodation is necessary? This is not an ordinary circumstance. If we can agree on this point, then we are in the same game. Then we can talk about whether we get to first base or not.
Senator Austin: Let me qualify my reply by saying that I spent several decades dealing with issues of policy in this field. I am familiar with judicial decisions that test the nature of consultation, including in my own province of British Columbia, the most recent decision with respect to the Haida Nation v. Weyerhaeuser case.
I think that consultation is a process that is engaged when the federal government is seeking to make changes of an imposed kind or determined kind on the Aboriginal community. Consultation is not defined as requiring agreement. Consultation has to be full and fair, with transparent disclosure.
In this particular case, nothing is being imposed on the Aboriginal community. It is a process that can be entered into or not entered into, at the wish of the claimant.
Senator Gill: There is no choice for the Aboriginal people.
Senator Austin: There is nothing being imposed in the legal sense, Senator Gill, that somebody is required by a change in the rules to obey a new set of rules. This is something that can or cannot be entered into by a claimant. It is not an imposition and therefore it is not a breach of a fiduciary relationship. I offer that to you as a distinction. I am not addressing Bill C-7 or Bill C-19 with these remarks, but only Bill C-6.
Mr. Schwartz: I will try to be very brief because I know these are not my innings.
When talking about the fiduciary obligations, we are talking about a situation with unilateral authority to act with respect to people who are vulnerable. These claims arose as a result of breaches of fiduciary obligations. I would suggest there is a fiduciary obligation when that has happened to deal with a situation fairly. There is an affirmative duty on the part of the federal government to create conditions under which these claims can be resolved fairly. To say, ``We are not imposing anything; we can leave the current unsatisfactory situation in place, where there is a backlog of 600 claims; maybe the new system is futile but your situation is not worse,'' does not seem to respond to the point that there are affirmative duties on the part of the federal government as a fiduciary to address the consequences of hundreds of breaches of fiduciary obligations across the country.
In terms of whether this is just a step forward, Senator Austin, I appreciate your clarifying that because it was a point we were having trouble getting across. It is now clear. I think everyone understands that access to the public inquiry process is not available. We had some trouble getting that point across, but now it seems to be common ground.
The point is sometimes made that the commission could still opine on a claim. We have to be careful about that. There is no authority for the commission in the non-binding arbitration to have the powers under the Inquiries Act. There is no ability to issue subpoenas and no ability to force the federal government to state its case. Frankly, I do not believe the commission has the authority to act as a non-binding opiner. If you are funding, you are not allowed under this proposed legislation to also participate in ADR. Who is in charge of funding the commission? If the commission is in charge of funding, they cannot get in the trenches and pass an opinion on whether the claim is valid or not. Furthermore, after ADR you have to go to the commission to say whether ADR was exhausted. The commission cannot fund, be the ADR process, and again have a role in deciding whether the ADR process was okay. The ADR people, the mediators, the conciliators, the non-binding arbitrators, are supposed to be outside the commission.
Access to the inquiry would be taken away. There were amendments in the other place to restore at least the inquiry process for claims above the cap, but that was defeated on a party vote. You can see the difficulty of having an adequate level of confidence in the amendment process.
What else is taken away? For the first time, the minister gets a statutory right to delay a claim forever in section 37(4). He has to report but no amount of delay ever counts as constructive denial. The AFN has a view that a certain amount of delay under the current system counts as constructive denial. The Department of Justice does not agree with us, but at least we have that argument to make.
This bill will statutorily entrench a right that no amount of delay ever counts as denial of claim.
I will touch on one other point very briefly. With respect to taking things out of DIAND, you mentioned you are there for good behaviour so why would you be worried about who appointed you? You are also worried about your reappointment. You are serving a short term of office. Who is reappointing you? It is the same minister and the same government.
We have case law in our legal opinion saying that in some circumstances it is inconsistent with the duty of impartiality of the tribunal to have a short-term appointment contingent on having one party reappointing you.
Taking it out of DIAND, a subtle thing happened after the JTF. Under the JTF, the commission would have control over its own staffing policies. Under this proposed legislation, it turns out that existing public servants have a preferred right to serve as staff on the commission. People on the commission have a preferred right to go back to the federal public service. The commission has been required to stay in Ottawa. You are not allowed to have a regional office outside of Ottawa. In effect, it is not just the senior people but also the staff have been turned into an extension of the federal public service. That independence that was supposed to exist will not exist. You can imagine a scenario in which the same folks who spent careers denying specific claims will now be the staff people at this new body.
I say all that with great respect. I certainly respect Senator Austin's long and distinguished career and his bona fides in looking at this proposed legislation.
We are in the early stage of the process. You are talking about amendments now. Our primary objective is to try to get our case across.
For example, the last time, there were people here from the federal government saying there are only two departures. We think those two departures were devastating in themselves, and we would like to demonstrate that there are a great many departures.
The Chairman: We are already doing that and researching it.
Senator Austin: Mine was a supplementary but Mr. Erasmus asked me a question and we went off in pursuit of it. I would like to be clear, Mr. Erasmus. Are you asking us not to pass this bill?
Mr. Erasmus: We are asking you not to pass it as it is.
Senator St. Germain: I have been sitting in these committees for 20 years and nothing has changed. It does not matter which government comes in, it seems it is a question of doing things to natives, instead of for them.
I believe I met you for the first time while we were working on Bill C-68. The same people here today were the ones that espoused the virtues that we consulted with you native people on this particular issue.
Now, it is the same thing again. I am hearing the same song again, and this is not a partisan scenario. I am talking about the non-Aboriginal side of the spectrum.
I have listened to you carefully this morning, and you said there were some discussions with the AFN in regard to the specific claims legislation, but it came out of the chute designed for the bureaucrats and by the bureaucrats of DIAND.
I do not know how we get rid of this because I think they are just tinkering. What they have done to our Aboriginal is bring forward a number of pieces of legislation all at one time. I hope that the ulterior motive is not to create the confusion illusion. I am very concerned.
Senator Chalifoux and several of us are working on the movement of our Aboriginal people into urban centres, and problems such as the one before us destroy the faith and hope of our young Aboriginal people.
I hear Senator Austin saying that this is not mandatory. I do not know where you would go with specific claims because Chief Phillips sat in my office with Mr. Pangowish and went through it step by step, and there are major claims that have to be settled in that area.
Senator Austin says you do not have to use it. Well, what do you use then to get through the process? What is killing our Aboriginal people is the extreme cost of litigation. We have an injunction with regards to Bill C-68 from Nunavut now before the courts. My question is this: Where is the breakdown?
I have great respect for both you and Grand Chief Coon Come, but it seems it does not matter where we go we end up at the same point where there is total frustration. I guess there are some people that would say that there are natives that do not want to find a settlement in anything.
We have governments, and I am not speaking about a particular government, but governments in general, who really are always so manipulative that they fail to deal with the real issues and they end up with what we have now. We have Paul Martin out there saying that he will not implement the legislation, if it comes through.
Do you see a solution as to how we could set up a process that, when there is a discussion on something, it becomes effective for both sides and it is not thrown offside by DIAND and the rest of that organization?
Mr. Erasmus: Senator St. Germain, I do recall our discussions on Bill C-68. You will be pleased to know that, through the AFN, we are having discussions with the Canadian Firearms Centre on developing a First Nations initiative, but that is more after the fact than not. However, we are making progress.
The question that you bring forward is fundamental to the issue. Mr. George Erasmus and the other commissioners, through the royal commission, looked at these questions, and I suggest you might want to bring them forward to talk to you.
Trust is one of the biggest problems in this issue. I think there is an underlying sentiment where, as First Nations and Canadian peoples, there is a lack of trust.
There is a huge difficulty on the part of some Canadian people and it is part of the myth, I think, that our lands were extinguished and that the land belongs to Canada. It seems that, almost at all costs, the system continues to perpetuate that myth.
I think questions like this have to be taken out of the hands of the Canadian Parliament.
Canada agrees, that our rights and privileges do not derive from the Canadian Constitution. Canada says we have the inherent right that comes from the pre-Confederation period. If we have the inherent right, we need to develop a mechanism for that inherent right to develop.
Canada cannot continue to legislate on our behalf, or legislate our rights away. There has to be a mechanism put in place so that we deal with the issues in a way that constitutes nation-building. The treaty that I am party to, treaty 8, was struck with King George V.
Those are the fundamental questions we need to deal with, and I think it will take courage and the ability to do that while we still have patience and goodwill.
Senator Chaput: I would like to understand the difference between what is going on now versus what would be going on with Bill C-6, concerning the award of compensation.
How is a claim awarded now as opposed to how it would be done under the Bill C-6?
Mr. Erasmus: Mr. Pangowish knows the system better than I do and I will defer your question to him.
Mr. Pangowish: In terms of the difference in the way compensation is awarded, under the existing specific claims process, there is no awarding of compensation. There is merely a process of what they call validation, although we do not like that term because we feel that is part of the conflict, the government being judge and jury against claims against itself.
The government will accept to negotiate a claim, and part of the problem has been those claims negotiations take so long. What happens is you try to reach settlements.
The idea of the independent claims process was to provide some incentive toward negotiating and reaching settlements, because now it takes many years to go through that process to reach settlements.
Currently, there is no awarding of compensation unless you go to court. You may want to look at the Blueberry River Indian Band vs. Canada (Department of Indian Affairs and Northern Development, in respect of the loss of oil revenues that was rejected by the federal government. Under the specific claims process, it was taken to court and went through all levels to eventually reach the Supreme Court of Canada, where compensation was awarded.
Under the proposed process of the joint task force, the preference was for negotiated settlements. Settlements should be negotiated such that both sides deem it the best way to decide matters, especially where lands are required to be returned because the provinces must be involved in respect of the jurisdictional divisions in Canada. This is another hurdle in settling claims. Nonetheless, it was thought that if there were an easily accessible tribunal, that would be sufficient to provide incentive to reach negotiated settlements, whether the province was involved or not. There would be more incentive on the part of the federal government to engage the negotiations and to move toward settlement in a more efficient manner.
The last gasp, ``the hammer,'' as some people call it, would then be the very existence of an easily accessible tribunal. Of course, it is an opportunity for the claimant to go before a tribunal because there is no appeal of tribunal decisions. Judicial review is available but once the claim is taken before the tribunal, they are putting that claim on the line because it will be decided, making it a difficult choice for the First Nation claimant.
Under the proposed joint task force model, the tribunal could award compensation without limitation in accordance with the lawful obligation established through the legal proceeding. I hope I am not being too complicated but that was the proposal for available compensation.
Under Bill C-6, although compensation can be awarded, it is limited by the $7 million-cap, which is where our concern lies. The government says that 70 per cent to 90 per cent of the claims can be settled for under that amount. First Nations are saying that 90 per cent of the claims could not be settled for less than that amount. We present as evidence that eight of the last 11 claim settlements were well over that cap amount.
Senator Chaput: Would there be a difference in the negotiated settlements between the current system and the proposed system under Bill C-6? Would the settlement amount, once everything is done, be allocated differently under the proposed legislation? How would your people be compensated?
Mr. Pangowish: When we first made submissions on this in 1990 following the Oka crisis, one of our primary recommendations was that these being lawful obligations they should not be limited by budgetary allocations, they are lawful obligations.
One year later, the government established a budgetary allocation for specific claims settlements of $30 million, which has been increased to $75 million. However, government could go back to Treasury Board under specific settlement agreements and receive more money for claims but we are still talking about a very small proportion of the overall outstanding debt. The government is just chipping away all the outstanding claims.
One of our concerns with the proposed legislation is it does not provide for any substantial effort or increase in the settlement of more claims. Over the last three to four years, there have probably not been more than two or three settlements per year. You can see that at that rate, it will take a long time to settle the 550 backlogged claims, provided they are all valid, let alone the 2,000 additional claims that we estimate have not been submitted as yet.
The difference is that this budget allocation system limits the potential for settlements. We proposed, in the joint task force, a budgetary allocation system but it envisioned a more substantial allocation that was aimed at eliminating this backlog of claims.
Senator Chaput: Has that has been reflected in the proposed legislation?
Mr. Pangowish: No, it has not.
Senator Léger: According to what I heard, Mr. Erasmus, the Crown perpetuates delays according to Bill C-6, as it now stands. You also said that Bill C-6 does not give adequate time to address this issue. It seems to me that you are making a contradictory statement. On the one hand, you say that the government perpetuates delay, while on the other hand, you ask for more time. Am I correct?
Mr. Erasmus: I am not sure if I understand your question. I did mention that Canada has the ability to delay. I am not sure about the rest of the question.
Senator Léger: I understood from you that on one side, the Crown perpetuates delay, which is what you said, while on the other side of the issue, you ask for more time for these issues.
Mr. Erasmus: In terms of time, we are saying that time is needed to rectify the situation. You need to hear the concerns of people across the country. You need to fully and clearly understand the complexities that are before us. That was the reference to the need for more time.
Senator Léger: Does that perpetuate delay?
Mr. Erasmus: We are not talking of delaying any process. We want this to work. We believe that the only way it can work is to hear people speak to the issue. That is especially so because, in the early development of the bill at the committee stage, there was little opportunity for people to speak to the issue.
Senator Léger: Did that happen with the joint task force? I understood you to say that the decisions were not applied and that is why you object.
Was adequate time given for people to speak out? In other words, I feel that on the one hand the Crown has perpetuated delays and on the other hand, there has been another delay. For me, it is the same because it is always being put off.
The Chairman: I believe the senator is referring to clause 30 of the bill. Senator Leger is saying that the minister could delay and delay and delay the decision.
Mr. Erasmus: The way we understand it, there is now a time frame within which the minister has to come forward every six months. However, the minister does not have to make a positive decision. He could delay the decision by saying that it still needs to be reviewed. Thus, the delay could be perpetuated and never truly end. That is one of the difficulties.
To get back to your question, yes, we did have good, early development in working with Canada on this bill and it is unfortunate that it was diverted. Whether we are able to arrive at that kind of a position again is up to the Senate at this time.
Senator Léger: We have Bill C-6 on the table, which is the government's position. If I understand correctly, the First Nations do not have a similar position, and the reason for that is because you have no rights; is that it?
You said the Crown can make changes, but you cannot. Is that why no phantom Bill C-6 from your side is being presented? In other words, we have a Bill C-6 on our side, and I wish there were exactly the same on your side.
Mr. Erasmus: The process in which we are engaged is not a First Nations process; it is Canada's process. We agreed that we would work jointly to make that Canadian process a more beneficial one so that, in the end, we would have an independent system to deal with our grievances and outstanding concerns. It would speed up the process and make it fair, and it would be out of the hands of the Department of Indian Affairs and Northern Development. That was the agreement. Somewhere along the way, it moved away from that, and it is now, in our view, Canada's game. It is frustrating for First Nations.
Two weeks ago, the Dene nation met for one week with all our chiefs. We view it as our community governments, our tribal governments, and I am the spokesman for our people when we meet.
Try to imagine that we provide a bill or a resolution to you and it decides your future for you. In that situation the bill is very one-sided. In that case we would have to provide you with the opportunity to fend for yourself and to work within the process.
I do not know if you can appreciate that because I do not think you have ever been in that situation, except maybe with the provinces, but in the end, the parent is the federal government. You can compare, but it is not the same.
Senator Léger: I think I understand what you are saying. I am not pretending I am a specialist. Did the joint task force create the two-sided discussion? Is that correct?
Mr. Erasmus: Yes.
Senator Léger: Minister Nault told me that there were only two clauses in the bill that were not taken from the task force: one was the cap, and the other was the consultation for appointments. However, he told me that all the others came from the task force.
Mr. Erasmus: We heard that he made the comment that virtually everything is in the bill minus the cap and the appointments. That is not true. Either the minister does not understand what the task force presented or he may not understand what is in the bill. We are quite prepared to talk to him concerning these issues.
I believe you have heard presentations that clearly state more than two differences and the presentations have not been completed. There are 11 major areas on which they would have liked to comment, and they only dealt with three.
The Chairman: They had two hours for three.
Mr. Erasmus: That is correct. It is a complex issue.
Senator Sibbeston: The issue before us in Bill C-6 is a process to settle claims involving two parties: the federal government and First Nations. When you look at what is before you in Bill C-6, you deal with the question of whether it is a fair process to both parties? As I said, there are two parties involved in the dispute.
Members of the committee know my view. I expressed it when Minister Nault and the officials were here before us. I think the joint task force was a honourable process. I think it was the start of possibly good relations with good outcomes. Unfortunately, when the process was concluded and the recommendations went into the system, and into the bureaucracy, it got messed up. Members know that I expressed my annoyance at the officials when this happened.
We recently dealt with the Yukon environmental assessment process. A bill came before us where the Aboriginal peoples in the Yukon were involved with the territorial and federal government, and they were satisfied with that process.
Positive things can happen in the dealings of Aboriginal people with government. The whole history of land claims, certainly in the northern parts of the country, is pretty positive.
I want to deal with the issue of an independent tribunal. In my view, when a tribunal and decision-making body is set up, obviously you are concerned with: the method of appointment to determine what kind of people sit on it; whether the body is truly independent in terms of its tenure; whether they can be replaced if the government does not like its decisions; whether the body would be free of influence; and whether the body ensures that ultimately a decision will be made.
In my study and work and after hearing representations from AFN, I have come forward with some amendments that I think would help. There are four or five of them that I will bring forward. One will deal with the appointment process. I agree with you that the appointment process ought to be a joint process. Otherwise, everything is stacked in the favour of the federal government.
At the moment, the minister can withhold decisions forever. There is no onus or no mechanism to force the minister to make a decision. If we could somehow provide a mechanism whereby the minister must make a decision after a certain period of time, and if not then the decision is deemed to be a positive one, would that satisfy you?
Would you ever concede that, through our conscientious and sincere efforts, we could work together to improve this bill? Would AFN be interested in working with us to undertake such a process and come forth with a bill that may not be perfect to you, but which would at least be seen as a step forward?
Mr. Erasmus: I come from the same part of the country as you do. To a large extent, I think we have experienced a different set of circumstances. Through our own historical background over the last 30-odd years, we have been able to make progress at the number of tables that have been set up.
We are fortunate in comparison to the people south of 60o where we have a number of tables: comprehensive claims, treaty land entitlement, self-government negotiations, resource revenue sharing, devolution of oil and gas, et cetera. We have the ideal situation in Canada and most recently, a number of agreements have been signed.
It appears that another agreement will be signed before the summer. We have had improvements in terms of our people being able to develop and prepare to implement governments and agreements.
That is not the case in the south. This is the only answer for many people. The tables that I just mentioned are not available in most instances, except in the Maritimes and some parts of British Columbia.
We want to have something upon which people can rely. We want people to feel comfortable with the process and feel that there will be a good judgment regardless of the outcome. That is our goal. We do not want to prevent that from happening. We have put a lot of energy into making it work.
We are not in control of the process. Your question to us then is: Do we want to work with you? Yes, we do. We will make every effort to improve the bill and to make this work.
Part of the difficulty is that Canada is linking this legislation with other pieces of legislation with which it was not to be linked. That may make it politically difficult.
However, as a political leader it is safe to say that we want to make this work. Otherwise, it will take us backward.
The Chairman: This committee made a decision that Bill C-6, Bill C-7 and Bill C-19 are stand-alone bills; they are not connected. We made that decision when we received this bill.
Greg Ahenekew from the FSIN has attended a briefing in my office. His organization has proposed four amendments to this bill. He said that they would be willing to live with the bill if their amendments were accepted.
Mr. Ahenekew and Wilson Bearhead are part of the AFN. They met with me in Saint Albert and said the same thing. We are slowly working together, but those amendments should be tabled before this committee and reviewed.
Senator Sibbeston: I am encouraged with you expression of interest in working with us. I believe that there is a sincere interest in the committee in trying to resolve an impasse.
I was at the demonstration held here 10 or more days ago. I sat on a panel that the AFN organized. Once the bureaucrats did not follow the task force recommendations the First Nations lost a sense of ownership that had been part of this process. It is all a matter of ownership. However, your views are not being abided by.
Perhaps through meeting with you we can get back on track and try to make some amendments that would improve the bill. I would be interested in working with you. I am hopeful that the committee will also be interested in such a process.
I have written to my colleagues as a result of dealing with you and hearing the position of the federal government. I have considered the matter and have come to a conclusion on what would be fair and what would possibly improve the bill.
I have addressed four or five issues and I am be prepared to give you a copy of this in order to give you an idea of my proposals. If you are agreeable and the committee is willing, I am interested in pursuing the idea of meeting with you whereby we could try to resolve some of these issues and come to an understanding. I am sure that we will be able to come forward with a bill that will be an improvement over the one before us.
We could try to salvage the situation in this way. I honestly do not know if it is in our power to refute the bill completely.
I am conscious of the democratic process and position as appointed senators. Our role is to provide sober second thought and represent minority and Aboriginal interests in the regions.
We off to pursue a process and come forward with an improved bill. I would like your comments on this idea.
Mr. Erasmus: We would be pleased to work with you. I do not know if that means that there would be a formal exchange. I do not know how it might work. We would be pleased to hear the mechanics for that procedure.
In addition, it is important to hear from First Nations across the country that have experienced loss of land and made application to this process.
The Chairman: You have our witness list.
Mr. Erasmus: That will help you understand this process.
The Chairman: We must be careful concerning this issue; there must be sober second thought on both sides. We do not generally have to work with the First Nations. We also have to consider where the government is coming from. We have to be careful that we are not perceived as being biased. For that reason, I appreciated the amendments proposed by Greg Ahenekew. I would like his group to appear before the committee to present their amendments.
We understand many of the amendments and discrepancies within the bill. We have to make a decision as a committee. We have to be careful in how we proceed. We must be perceived to be non-prejudicial. We have to give sober second thought as the elders in Parliament.
Senator Watt: I have heard quite clearly from the presenters that the consultations were not properly conducted from the day that the joint task force completed its work. I also clearly understand that the appointment process is considered to be unbalanced. Perhaps it ties in with the question of a conflict of interest that has been identified by the witnesses.
My main focus is on the artificial ceiling. I need to be educated from the Aboriginal side. How did this figure of $7 million come about? Who established the ceiling? How does that take away from the people who have claims or grievances with the government?
With the possibility of jacking up that amount, then it goes into the arm's-lengths institution that is apparently set by the Government of Canada, with small participation from the Aboriginals. I do believe this independent mechanism has been asked for for quite some time.
I will not touch upon the other issues that you talked about in terms of the actual ingredients of those institutions, such as a tribunal and the things they can or cannot do. I think your legal advice covered that well, highlighting the differences between what has been brought forward in this legislation and how different it is from the joint task force that presented it. I believe the chairman highlighted the fact that it is already being looked at.
Tell me about this $7 million. How does that come about? How can anybody say that this is no longer your ball, that this is no longer yours? That this is no longer an issue that relates to you? It becomes outside, in between the government and the Aboriginal people. How does that come about? It is an unusual thing, at least to my way of thinking. How can you take it to a third party? It is almost like taking it to a third party, is it not? Could you explain that to me, please?
Mr. Erasmus: As we said earlier, we truly wanted an independent body that would be fair to Canada and fair to First Nations. Initially, there was no concept of a cap or limiting the overall benefit that a First Nation would get through the process.
Maybe Mr. Schwartz can give us more insight into it that issue. There were complicated formulas that were suggested.
Mr. Schwartz: It was one of the compromises we made. Senator Léger asked about what the ideal AFN bill would be. The ideal AFN bill would have had comprehensive claims and would have said indicated that these are long- standing debts that must be paid like any other debt. One of the compromises we made was to put a fiscal framework in the joint task force, which said so much money would be spent over a five-year period without capping individual claims.
The federal government, once the consultations ended and it went to the bureaucracy, came up with an original figure of, I believe, $5 million. They claimed that figure would cover most claims based on past experience. I tried to explain at the last hearing why we believe there is no statistical validity to that claim. There is no reason to believe that given the fact of 120 claims considered by the Indian Claims Commission, fewer than 10 have been less than $7 million. Most the claims in the last three years that have been resolved are over $7 million. We do not believe that is valid but that was their defence.
Madam Chair, you asked about amendments and playing a constructive role. We are prepared to address amendments brought forward by some of our sister organizations or brought forward at the other place.
Quite a number of interesting things were done at the other place about this cap. At the other place it was suggested the cap be much higher so it would genuinely encompass the lion's share of claims, because $7 million does not. There was a formal amendment proposed that the validity of all claims could go forward even if you could not get compensation for all claims, which would have been better than having nowhere to go after the commission. It was proposed that you have the right to get the public inquiry that currently exists under the Indian Claims Commission, that all its jurisdictions would be restored.
The ideal would have been no fiscal framework. It is not a silly position. It is not a realistic one, in a sense, because the federal government will not agree to it. However, in principle, there is nothing unreasonable about saying that these are debts like anything else. If you owe money to General Motors or the United States, you pay. You do not have a framework. However, as a compromise we agreed to it.
Now we have an extremely low ceiling, which will exclude the overwhelming majority of claims. Remember, too, it is not just claims in terms of their intrinsic value. Few band chiefs will go to the band and say, ``This claim is worth between five million and $15 million.'' ``It is okay if I bring it in for seven?'' Those people will not survive re-election.
If you want to look at amendments, there are better positions than what is in Bill C-6, with higher caps with validity for everything and continued access to the public inquiry.
It is not position of the AFN at this point that any cap on individual claims is acceptable. However, I cannot predict what its position will be at the end of the day. I am a technocrat, not a political person.
If this committee is interested, we can look at the amendments that have been proposed at the other place, look at the amendments of the other organizations and help explain some of their technical meanings, and what they would do and would not do.
It is an invidious position to be in, being on the negative, because we came out of the joint task force having demonstrated that we could be constructive and creative. Now we have been forced into a critical position. It is not where we want to be. It is an unfair position to be in since it was not of our doing.
Senator Watt: If the Aboriginal community has claims or grievances of huge amounts, such as $500 million, they can only make the claims up to $7 million. Then it is out of their hands.
Administratively or politically, the government is doing this for the purpose of exercising a budgetary purpose. In other words, DIAND is capping it at a certain amount when the budget has to be established, so they would know the figure in advance. Is that the way you view it, that it is nothing more than a government tool that you are in a sense not getting anything out of?
Mr. Schwartz: In the joint task force report, the proposal was that there be a global budget.
Senator Watt: Was there mention of the amount?
Mr. Schwartz: Maybe Mr. Pangowish recalls the precise amount. I think it was $250 million or more.
Mr. Pangowish: In terms of assessing amounts and how much it would take to pay off these claims, these are finite claims. This is not an endless hole. We requested from federal officials to have an independent assessment done. They had done their internal assessment to justify the figure they were putting forward. Obviously, the First Nations leadership disagreed. We asked for an independent assessment to see how much it would take to settle the outstanding claims.
No one from the government was will to do what we asked. I do not know if that is too difficult for the Senate to do for us. However, there must be some responsible way to get an estimate of what it will cost to settle the outstanding claims.
Senator Watt: To get an independent assessment you do not have to put it in a legislative form.
Mr. Pangowish: Our main point is that it is prejudicial to put a cap on individual claims.
Senator Watt: You are not in favour of putting any amount as a ceiling. Did you say you that the task force suggested the figure of $250 million?
Mr. Pangowish: There are other ways to be responsible in terms of government management of the resources.
Senator Watt: What do you want to see in respect of the conflicts? How do you want to rectify this matter of the Minister of Indian Affairs and Northern Development having the right to make the decisions and being a trustee at the same time? What is your recommendation in that regard?
Mr. Schwartz: Our recommendation is based on the joint task force model, the same one used in the modern land claims agreements. There is a joint appointment.
Senator Watt: Does the Prime Minister appoint the person?
Mr. Schwartz: No. The Assembly of First Nations and the federal government would jointly appoint the person.
Senator Watt: Are you saying that the list would be made available and the Prime Minister would then make the appointment?
Mr. Schwartz: The model of the joint task force was such that a joint list was prepared and cabinet would appoint from that list.
Senator Watt: Is that the situation right now?
Mr. Schwartz: Under Bill C-6, it is a unilateral appointment and re-appointment.
The Chairman: The joint task force recommendation was that persons were eligible to be appointed only if the AFN and the minister recommended them. The Governor in Council would appoint the person.
Senator Watt: The chairman has highlighted the fact of those three pieces of legislation. With respect to Bill C-6, do you view that as connected to section 35 in any way or that it diminishes your ability in the future?
Mr. Erasmus: We mentioned that we are dealing with legal obligations, many of which stem from treaties so they are under section 35, especially if there is no non-derogation clause.
Senator Watt: We have a big problem with the non-derogation clause.
Mr. Erasmus: The discussion that we are having is about not getting a homerun on you first at-bat. In our early discussions before Canada moved away from the process, people realized that they could not get everything that they hoped for in regards to land claims.
It was suggested to us that we could review the issue of the cap and its ceiling after a short period of time. However, according to the bill, the cap can be reduced. Therefore, there is no reassurance that the cap will go up even if the majority of the claims are within that range. Furthermore, there is nothing to say that Canada has to pay the amount in full on the day that the agreement is finalized. The monies can be paid over a long period of time; it may take up to 25 years for the amount to be paid in full. During that time, Canada is reaping the benefit of interest while at the same time not paying to the payee. This situation is happening in other modern agreements.
For example, if the claim settlement was for $500 million, by the time it was paid in full, Canada could have reaped the benefit of interest earned over the 25 years, bearing in mind that Canada would not have paid any interest. There are financial ways to work this so that Canada wins and First Nations win. There are ways to make this a beneficial situation for both of us.
The Chairman: I regret to say that we must end this interesting and helpful discussion. Thank you.
Mr. Erasmus: We would like to thank you Madam Chair and the members for being patient and for your good questions. We would be pleased to come back to make additional comments. It occurred to me that it might be worthwhile for our technical people to develop a graph for you to better understand the current system and the proposed system. There is new and often confusing terminology involved.
The committee adjourned.