Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 17 - Evidence of June 4, 2003
OTTAWA, Wednesday, June 4, 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 6:34 p.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I call this meeting to order.
It gives me great pleasure to welcome each and every one of you. I hope you had a good trip here. I understand someone drove across this great country of ours, which is a wonderful experience.
This evening we are dealing with 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.
This evening I welcome from the Union of British Columbia Indian Chiefs, Chief Phillip; from the Alliance of Tribal Nations, Grand Chief Pennier, Yewal Syiam, that is, President, of the Sto:lo Nation; from the B.C. Treaty 8 First Nations, Chief Roland Willson and Ms. Smithson. Thank you for coming.
We will listen to each of you and then the committee will ask questions. We can then get into a good dialogue on what the issues are.
Chief Stewart Phillip, President, Union of British Columbia Indian Chiefs: Honourable senators, I am the Chief of the Penticton Indian Band, which is part of the Okanagan Nation, and President of the Union of British Columbia Indian Chiefs. I want to thank the committee for providing the Union of British Columbia Indian Chiefs the opportunity to present its position on Bill C-6, the specific claims resolution act.
The Union of British Columbia Indian Chiefs undertakes specific claims research for our member communities and other First Nation groups throughout British Columbia. Presently, the UBCIC research department has 83 active specific claims files. This represents the largest number of First Nations communities in the province, and we handle approximately one-third of all British Columbia specific claims.
I am here tonight representing our chiefs, councillors and grassroots members from across British Columbia. We want to make known to you our unequivocal and total opposition to Bill C-6 in its present form.
After careful consideration and discussion, it is evident that this bill will have a detrimental impact on our communities and, contrary to the statements of the minister, will significantly impair any efforts to obtain a truly independent and fair process for resolving specific claims. We ask that the bill in its current form be withdrawn and that the Senate committee recommend a return to fair and open specific claims policy discussions between the federal government and First Nations.
It was the hope of all First Nations communities in B.C. that a new bill to establish a truly independent claims body would facilitate the fair and equitable settlement of the federal government's outstanding legal obligations to First Nations and deal with the overwhelming and unacceptable backlog of claims already in the system. Bill C-6 does not come close to achieving this objective.
Contrary to the minister's expectations, Bill C-6 will not contribute to the building of stronger, healthier communities. Nor will it deliver new tools of economic self-sufficiency to First Nations or offer us a better quality of life. In fact, it will effectively deny us these basic rights.
As unacceptable as the current specific claims resolution process is, it is the opinion of our chiefs and grassroots members whom I represent that the status quo is preferable to what will confront us under Bill C-6.
It is with great regret and anger that I speak these words to you tonight. The genuine optimism expressed by First Nations leaders, technicians and community members during the active years of the joint task force has given way to widespread feelings of frustration, betrayal and resentment.
How and by what authority did mutually-agreed-upon guidelines and criteria for addressing outstanding legal obligations on the part of the federal government to First Nations people mutate into what amounts to lip service to independence and fairness? How and why, after commitments to work in meaningful cooperation and consultation with First Nations, did such fundamental changes occur to the proposed legislation without discussions taking place with First Nations as promised?
How have inherent conflict of interest and delay, identified as the principal failings of the current specific claims process, become entrenched instead of rectified, contrary to the character of a truly independent claims body?
These are the questions I am asked repeatedly by community members, both in Penticton, where I live, and when I travel throughout British Columbia.
I realize that by now you have heard presentations from the minister, from the Assembly of First Nations and from chiefs and technicians from across the country. I am aware that you are now familiar with the technical aspects of Bill C-6 and have heard many of the same arguments put forward as to why Bill C-6 fails in its stated aim, to legislate a fair and independent body through which the Government of Canada will abide by its own laws and begin to resolve the hundreds of outstanding specific claims.
There is no doubt that these arguments begin to run together and seem almost mechanical. For decades, First Nations leaders and community members have listened, with both hope and skepticism, to routine promises from federal politicians to fulfill their legal responsibilities to us, only to have these promises broken time and again, and the honour of the Crown rendered a meaningless contingency.
It seems that the present situation is no different, with the fast tracking of this piece of proposed legislation that contrasts so starkly with what First Nations expected when the joint task force concluded its work.
First Nations across British Columbia have identified many significant problems with Bill C-6, most of which other witnesses have already identified, such as the inherent conflict of interest Bill C-6 entrenches, and some of which are due to British Columbia's unique history of reserve creation. Mindful of time constraints, there are two areas that I will focus on tonight. The first concerns the content of the bill as it affects our member First Nations communities. The second area concerns the process by which the bill has arrived before you.
Bill C-6 does not consider fairly all of the federal government's outstanding legal obligations to First Nations. This bill legislates narrower criteria for validating specific claims, to the detriment of British Columbia First Nations. For example, it excludes from consideration as admissible, claims involving unilateral undertakings. The implications of this exclusion in British Columbia are severe, since a great number of reserves in our province were established through unilateral undertakings of the Crown, that is, by promises made outside of treaty or legislation.
To put our concern into context, I have to give you just a few statistics. There are 2,717 Indian reserves across Canada, and 1,681 of these, roughly 62 per cent, are located in British Columbia. A small number of these were established through treaties, on the south end of Vancouver Island and in the northeastern part of the province, extending into Alberta. A slightly higher number were established following early legislation authorizing a royal commission to tour the province and create or amend existing reserves. However, the majority of Indian reserves in British Columbia are the product of promises made to First Nations communities by Crown agents such as colonial governors and Indian reserve commissioners. This is the case with my own community, the Penticton Indian Band, where Indian reserve commissioners allotted our reserves in 1877, some of which were subject to cut-offs by a subsequent commission decades later.
Clause 26 of the bill excludes any direct reference to unilateral undertakings, stating that only treaties and agreements can give rise to an admissible claim. This exclusion does nothing to address the failure of agents acting with the sanction of both colonial and Canadian governments under orders in council to honour promises made to First Nations regarding the provision of lands and rights to resources, nor does it address the many subsequent failures by federal government officials to protect these provisions as mandated by the Indian Act. Failure to consider these types of specific claims also ignores many recent court decisions on the conditions necessary for the establishment and recognition of Indian reserves, such as the Ross River case.
Of all the specific claims submitted to Canada since 1970, just under half have come from British Columbia. Research technicians at the Union of B.C. Indian Chiefs and their colleagues at the Alliance of Tribal Nations estimate that one-third of specific claims originating from British Columbia would be excluded from the new commission proposed by Bill C-6. It is unacceptable that there is no form of negotiated redress for these breaches of federal responsibility. British Columbia First Nations should not be penalized for discrepancies or inconsistencies in Crown policy in B.C. as compared with the rest of the country.
The law is clear: When the Crown makes a unilateral undertaking, that is, when it purports to act on another party's behalf, not in self-interest but for that party's benefit, it must be governed by a fiduciary obligation. However paternalistic the assumptions and implications, the Crown is legally obligated to act in an honourable way, in accordance with a standard that is higher than that to which it would be held during a course of negotiation. This is what is meant by the honour of the Crown. If the Crown fails to uphold this legal duty and further fails to provide an adequate mechanism for redress, the honour of the Crown is brought into disrepute and exists on the level of mere rhetoric rather than substantive justice.
The next point I want to discuss is access to the tribunal. Bill C-6 proposes to deny access to the tribunal for all claims that would have a potential level of compensation exceeding $7 million. This means that there will be nowhere for larger claims to be heard, other than the courts, and since these larger claims are more complex, both the federal government and First Nations will spend their time and money in litigation instead of negotiating reasonable, fair settlements, effectively undermining the intent of creating an independent claims body.
The minister rationalizes this decision by stating that the majority of claims settled to date are less than the $7 million cap imposed by the bill. This figure runs counter to that set out by the Indian Claims Commission in 2002, which notes that over the course of 100 hearings, only 3 claims were valued at less than $7 million. I can think of a number of claims from British Columbia currently in the system that exceed this settlement amount. For example, the Williams Lake village site claim, which was submitted for re-evaluation after the 1997 Supreme Court of Canada Delgamuukw decision, will far exceed $7 million, as the land in question is located in the present day town of Williams Lake itself. The Upper Nicola Indian Band, located in the interior of British Columbia, is currently negotiating a commonage claim around the area of Douglas Lake and has an estimated value that also exceeds $7 million. I am saying that you cannot achieve an accurate estimation of settlement values without considering claims currently in the backlog.
Another significant problem that is of particular concern to British Columbia First Nations is that of delay. It is the opinion of research technicians and legal experts across the country that rather than constructively dealing with the current backlog of specific claims, Bill C-6 will create more delay. Moreover, it will actually reward the federal government for stalling.
I have already stated that there exists a massive and unacceptable backlog of claims. The majority of claims in the backlog originate in British Columbia. Of the over 520 claims currently under review in the system, about 48 per cent are British Columbia claims. Of the 200 claims currently backlogged at the Department of Justice, about 60 per cent arise from British Columbia. The Upper Nicola claim that I referred to a moment ago was submitted to the specific claims branch for review in 1993. That is 10 years ago. We have claims that we researched in the late 1980s that still have seen no resolution, no decision rendered as to their validity.
Bill C-6 does not propose any changes that will constructively deal with the delay, such as hiring more lawyers at the Department of Justice to deal with the backlogged claims or increasing the amount of money committed to settling the government's outstanding legal obligations in terms of research or settlement funding. Nothing in the bill compels the government to settle claims in a timely manner; indeed, delay could be indefinite. If a claim reaches the $7 million cap, the First Nation will not be able to recover further compensation in the form of interest and negotiating costs, factors that make it even more difficult to estimate the value of any particular claim. Bill C-6 also legislates the paying out of compensation in inflation-reduced dollars. My question is: How is a system that forces First Nations to settle for less than fair value impartial and independent?
Chiefs and grassroots community members across British Columbia want access to an independent tribunal and binding arbitration as incentives for the federal government to negotiate and settle claims. Obviously, the discrepancies over the value of specific claims settlements warrant further study.
I would now like to speak briefly about the lack of consultation in bringing this bill through Parliament. As I stated in my opening remarks, Bill C-6 in no way reflects what First Nations communities believed to be the content and spirit of the draft legislation mutually agreed upon by the federal government and First Nations in the joint task force recommendations.
Upon rejection of certain features of the proposed legislation by a majority of cabinet members, this bill was unilaterally reworked by the minister instead of being brought back to the First Nations for further discussions. This violates the spirit of good faith negotiations in which the task force undertook its work and has led to great mistrust on the part of First Nations of any gestures the minister may make in respect of the intentions of the new specific claims bill.
In the fall of 2001, Mr. Ed John, on contract from the minister, contacted the Union of British Columbia Indian Chiefs with an outline of the unilaterally reworked bill. He presented what amounted to a preview of the proposed legislation and invited brief comments. It was clearly stated at the time that this single meeting did not constitute meaningful consultation. As it stands, we have never seen a copy of the final report that allegedly reflects our views that Mr. John presented to the minister.
Further, despite widespread opposition to Bill C-6, as demonstrated in the letters we forwarded to the House Standing Committee on Aboriginal Affairs, there was no adequate consultation with First Nations. We repeatedly asked for regional hearings so that representatives from our many communities could meet with federal representatives and local leaders to discuss the implications of Bill C-6. This request was denied. The Union of British Columbia Indian Chiefs also made a formal request for funding for regional information sessions to inform communities about the bill and to make recommendations. We did not receive so much as a response from the minister.
I was fortunate enough to be heard as a witness in front of the House standing committee in November last year. However, many First Nations groups were denied this opportunity. As it stood, the presentations were restricted to a paltry 10 minutes, and we were informed of the scheduled dates on very short notice. Those First Nations that did present were unanimous in their opposition to Bill C-6 and in asking for it to be withdrawn. Yet the Liberal majority on the committee passed it quickly with no meaningful regard for First Nations' testimony. How could this happen? What kind of faith does this give First Nations in the parliamentary process? What kind of assurance are we to have that the Government of Canada is truly interested in our opinions and in fair proceedings?
Even at the current Senate committee stage, we are aware of several British Columbia communities that requested an opportunity to appear before you to make their individual presentations on this bill, but they were denied. These include: The Lyackson, Lytton and Nuxalk First Nations, as well as Bonaparte, Comox, Shackan and Mount Currie Indian Bands. I am encouraging the chiefs of each of these communities to file written submissions for your consideration.
First Nations communities have been asked to accept that the purpose of these hearings is to discover and consider our views and assessments of this very important piece of proposed legislation. There seems to be an urgency propelling this bill through both the House and the Senate that is at odds with careful consideration. The urgency appears directed towards limiting the Government of Canada's liability rather than meeting its lawful obligations to our people. Our voices should give each member of this committee pause. Three weeks of sporadic hearings is grossly inadequate, given the technical nature of the proposed bill, and, I say with respect, it fails to demonstrate that the members of this committee know exactly what is at stake should this bill pass.
Failure to make lawful redress for outstanding specific claims gives people two options: First, take the issue to court, or, second, for the communities to take matters into their own hands.
I come from a region of the country that has had no shortage of on-the-ground conflict. I know that court proceedings are costly, based on my own experience and on comments I have heard while travelling to communities across the province. I predict instability and mounting anger. This is the result of knowing oneself to be ignored, of experiencing the contingencies of legal remedies that are ostensibly in place for one's own protection and of experiencing a lack of options that should exist.
The Government of Canada regularly comes up with millions of dollars to honour international commitments to alleviate the suffering of people in devastated regions of the world, such as the recent pledge to halt the spread of AIDS across Africa. It justifies these expenditures on humanitarian grounds, and as a society, Canadians, and in particular First Nations, support these commitments. Yet the First Nations people in this country continue to suffer because of unlawful removal from and restricted access to our lands and resources. Fulfilling Canada's specific claims obligations is not a question of social spending rationalized on humanitarian grounds. It is a question of law, the dignity and honour of the Crown and the integrity of our own judicial standards. This translates into the ability for First Nations to be self-determining, to realize our aspirations and to be optimistic about our future.
Grand Chief Clarence Pennier, Alliance of Tribal Nations, Yewal Syiam (President) of the Sto:lo Nation: Honourable senators, thank you for inviting the Alliance of Tribal Nations to make this presentation to you on Bill C-6, the specific claims resolution act.
Our people's traditional territory encompasses the Fraser River Valley east of Vancouver, British Columbia. The total population of the Sto:lo Nation is over 6,000, with most of our citizens being young people under the age of 25. For our nation, the quest for justice and a fair resolution of our bands' many specific claims is tied directly to the quality of life that our youth and future generations will be able to enjoy.
I am appearing before you tonight on behalf of the Alliance of Tribal Nations, whose membership includes most of the 24 bands comprising the Sto:lo Nation, as well as several more bands of the Shuswap Nation. The Alliance of Tribal Nations was established in 1985 by three tribal organizations to support our people's efforts to stop the Canadian National Railway, CNR, from twin-tracking its main line through the Thompson River and Fraser River valleys. The Fraser River Valley is where our home and fisheries have been located since time immemorial. It is also the location of British Columbia's main transportation and utility corridor. The Alliance's efforts were successful and the CNR was stopped in its tracks, literally.
Over the past 18 years, the alliance has also been mandated to research and develop specific claims against the Government of Canada on behalf of our membership. To date, over 50 specific claims have been researched, with another 20 at various stages in the research process. Most of these claims involve the improper taking of railway rights- of-way by the CNR and the Canadian Pacific Railway, CPR, from our bands' small reserve land base. These claims generally include impacts from railway construction and operations on riverbank erosion, farmland, timber and traditional-use sites and on fish habitat. It is important to note that our reserve lands are also crossed by major highways, telephone lines, fibre optic cables, hydro transmission lines and natural gas pipelines. Our reserve lands are small in size but they have a very high economic and social value to our people. Given their location in the Fraser Valley corridor, they also have a very high value to the economy of the lower mainland of B.C. as a whole.
Over the years, our member bands have been cautious about prematurely submitting their completed specific claims to the government. This is because of Canada's ongoing conflict of interest in the current specific claims process, the lengthy delays in the process, the huge backlog of claims awaiting validation by the minister and the failure of government policy to accommodate significant advances in the definition of our legal rights in court. The members of the alliance have submitted a dozen claims to Canada for resolution through its specific claims process. To date, none of these claims have been settled.
Our member bands are anxious to settle their specific claims. In recent years, we looked forward with anticipation to a meaningful reform of the specific claims process based on the joint task force report, 1998. We thought that we might be able to submit our specific claims to a resolution process that was truly independent, fair and timely. Instead, the Minister of Indian Affairs unilaterally brought forward Bill C-6, the specific claims resolution act, which fails miserably on all three counts.
Senators, the Alliance of Tribal Nations has reviewed the testimony given to you by most of the previous speakers, including from the Assembly of First Nations. We share all of the fundamental concerns about Bill C-6 that were expressed by the AFN.
These are outlined by the alliance in document 1 of the appendix to this brief.
We believe that this piece of proposed legislation is so flawed and so different from the joint task force report that if passed in its present form, it will create a process that is even worse than what we have at present. In this regard, I recommend to you a guiding principle of medical practice: Above all else, do no harm.
I realize that our time before you tonight is short, and I do not want to repeat what others have already said, so in our presentation we will focus primarily on one major component of Bill C-6, clause 26. I will also refer to one major omission from the bill, the lack of a non-derogation clause. Before I do so, I wish to comment briefly on the process that has moved Bill C-6 through Parliament to this point.
Senators, others have informed you that when Bill C-6 came before the House of Commons Standing Committee on Aboriginal Affairs, a great many First Nations asked to appear and testify but were turned away. The Alliance of Tribal Nations was one of a few lucky invitees. However, in our case, the Commons committee allowed Councillor Ken Malloway only 5 minutes to make our presentation on Bill C-6, with another 10 minutes for questions. We found our time allocation, as well as the general timeline that the Commons committee followed on this bill, to be wholly inadequate and extremely disrespectful to our nations.
The Minister of Indian Affairs failed to consult First Nations on Bill C-6 prior to its introduction in Parliament. It was fast-tracked by the Commons committee and rammed through third reading in the House. The Alliance of Tribal Nations knows all about fast-tracks, and we know when our nations are being railroaded.
Now Bill C-6 is in the Senate, the chamber of Parliament charged with the constitutional responsibility to give sober second thought to legislation passed by the Commons. If ever there was a bill in need of a careful rethink by the Senate, it is Bill C-6. In our Sto:lo communities, we cherish and respect our elders because of their knowledge, wisdom and experience. Senators, you are the elders of Canada's Parliament. In a similar spirit of respect, I encourage you now to apply your knowledge, wisdom and experience to the task before you in a thorough, deliberate manner.
With respect, I encourage you to take the time necessary to hear from all of the First Nations who wish to testify before you on Bill C-6.
With respect, I encourage you to recall Dr. Bryan Schwarz and Mr. Rolland Pangowish of the Assembly of First Nations so that they can complete their testimony and provide you with a full, in-depth analysis of Bill C-6 and how it differs fundamentally from the draft bill set out in the joint task force report. With respect, I also encourage you to seek advice from independent experts such as Mr. Justice Gerard LaForest and the Canadian Bar Association.
The Alliance of Tribal Nations believes that the Parliament of Canada has a fiduciary obligation to consult fully and meaningfully with First Nations when it considers proposed legislation that directly impacts on our people's rights and interests. We believe that this duty overrides any fast-track legislative timetables manufactured to burnish the legacy of a retiring Prime Minister.
Respectfully, we urge this committee of the Senate to do its duty. Take the time to hear what our people have to say about Bill C-6. Take the time to hear what the experts have to say. Take the time to deliberate on how best to address the numerous weaknesses in this bill as well as its total lack of support from First Nations. If this means that your work on Bill C-6 is not completed by the time Parliament recesses for the summer, so be it. Our nations will see that as a sign of respect and will thank you for carrying out your fiduciary duties conscientiously.
I will now turn to the two substantive issues I mentioned earlier.
The Alliance of Tribal Nations calls the committee's attention to a substantive and important omission from Bill C- 6, the lack of a non-derogation clause. We note that a non-derogation clause was included in the draft bill developed by Canada and our First Nations in the joint task force report. Its absence from Bill C-6, therefore, arouses our suspicion. We are aware that the Department of Justice wants to retroactively strike out all non-derogation clauses from existing federal laws. This arouses our suspicion even more. It is only natural that we consider the lack of a non-derogation clause in Bill C-6 to be a threat to our First Nations' rights and interests. If non-derogation clauses did not help protect our rights, would the Department of Justice be making such a big deal about getting rid of them?
I do not want to repeat what others have already said about the lack of a non-derogation clause in Bill C-6; instead, I refer the committee to the concerns raised on this subject by the Assembly of First Nations. The AFN's concerns are shared equally by the Alliance of Tribal Nations. In the end, if Bill C-6 is to be passed by Parliament, it must include a non-derogation clause.
The second fundamental concern we wish to raise in this presentation is clause 26 of Bill C-6. This clause sets out key policy changes intended to govern the submission of specific claims to the proposed commission. It is among the most damaging provisions in the bill for First Nations in British Columbia.
Senators, 44 per cent of claims submitted to Canada since 1970 have come from First Nations in British Columbia. Out of the 506 claims in the current backlog awaiting action, 246, or 48 per cent, are from First Nations in B.C. Clearly the impacts and outcomes of Bill C-6 will affect claims from B.C. more than any other region in Canada. We ask you to give this fact special consideration.
In British Columbia, Indian reserves were established in three ways: By treaties in Southern Vancouver Island and the northeastern part of the province; by unilateral undertakings of Crown agents such as colonial governors and Indian reserve commissioners; and lastly, pursuant to legislation that established a royal commission from 1913 to 1916 known as the McKenna-McBride commission.
Most Indian reserves in British Columbia were established by unilateral undertakings of the Crown — by Governor James Douglas from 1848 to 1865, by other colonial officials from 1866 to 1871, and then by Indian reserve commissioners from 1875 to 1910. Many specific claims from First Nations in B.C. involve unilateral Crown undertakings to set aside reserve lands.
I know firsthand from my work with the Sto:lo Nation and the Alliance of Tribal Nations that the Department of Justice refuses to accept specific claims based on unilateral Crown undertakings, particularly when they concern the size and location of reserve allotments and the failure to set aside reserves pursuant to instructions. The Department of Justice takes a very narrow position: Such unilateral undertakings never create lawful obligations on the Crown.
It is this limited Department of Justice position that is set out in subclause 26(1) of Bill C-6. It is not a view accepted by First Nations. It is not a view supported by the courts. The Department of Justice's rejection of lawful claims based on unilateral Crown undertakings was contested before the Supreme Court of Canada three years ago in the Ross River case. The Sto:lo Nation intervened in Ross River as part of a coalition of interested First Nations in B.C. who wished to challenge the DOJ on this very issue. In the end, the Supreme Court of Canada rejected the position of the Department of Justice, ruling that unilateral undertakings by Crown agents could indeed create lawful obligations on the Crown.
Last fall, when we first had an opportunity to review Bill C-6, we were astonished and outraged to find that clause 26 incorporated the same narrow position on unilateral undertakings that was rejected by the Supreme Court of Canada less than two years ago. In subclause 26(1), the Department of Justice hopes to entrench in statute its failed legal position in order to limit up front the kinds of specific claims that the proposed commission and tribunal could accept for negotiation and settlement. This is extremely unfair to our nations, and it is illegal.
Paragraph 26(1)(a) limits Canada's lawful obligations to those arising from an agreement, a treaty, or from Canadian or colonial legislation. Lawful obligations concerning Indian lands that arise from unilateral Crown undertakings such as imperial instructions, letters patent, Orders in Council, instructions to Crown agents and commitments made on the ground by Crown agents to First Nations are excluded from these criteria. Specific claims based on such unilateral Crown undertakings would be barred by statute from being filed with the commission. Litigation would be the only option available to First Nations for settlement of these claims, assuming they could afford the cost.
In British Columbia, an entire class of pre-Confederation claims, known as Douglas Reserve claims, would be barred at the door of the commission.
Numerous other specific claims in B.C. involve the establishment of, or failure to establish, Indian reserves by Indian reserve commissioners, and they too would be barred at the commission's door.
Let me give you a quick example of the kinds of specific claims that would be barred from the proposed commission and tribunal under Bill C-6.
In 1863, Sir James Douglas, Governor of the Colony of British Columbia, instructed the Royal Engineers to consult with the chiefs of the Sto:lo Nation and to set aside reserves for each community that would enclose and protect all our villages, fisheries and gardens. White settlers were already flooding into the Fraser Valley because of its agricultural potential. The Royal Engineers carried out their instructions and in 1864 set aside and marked out on the ground 15 reserves for the Sto:lo communities, comprising a total of 40,000 acres. The Royal Engineers drew a large sketch map showing the location and boundaries of these reserves, as well as the amount of acreage in each.
In 1865, a new colonial administration dominated by settler interests came to power. In 1868, the Chief Commissioner of Lands and Works decided that the Sto:lo Douglas reserves were too large and unilaterally proceeded to reduce them in size. By the end of that year, our Sto:lo communities were left with 22 small reserves comprising only 3,761 acres, a reduction of over 90 per cent. No compensation was ever paid to our people.
Between 1870 and 1874, our chiefs petitioned the colonial governor of B.C. and the new federal Indian commissioner protesting the loss of our reserve lands, but to no avail.
In 1879, some of our remaining reserves were enlarged a little by the reserve commissioner of the day, but we were still left with less than 15 per cent of the acreage of our original Douglas reserves and the Government of Canada refused to pay compensation for the loss.
In 1997, 13 bands of the Sto:lo Nation submitted a specific claim to the Government of Canada for restoration of their Douglas Reserve lands or some other acceptable remedy. In 1999, the government rejected the claim. A hearing before the Interim Indian Claims Commission is now pending.
Meanwhile, our Douglas Reserve lands continue to be alienated by the federal and provincial governments, making them unavailable for settlement by specific claims or treaties.
I call the senators' attention to the recent experience of one of the 13 claimant bands, Soowahlie, whose Douglas Reserve lands encompass the site of Canadian Forces Base Chilliwack, which was closed by the federal government in 1997. A small portion of the huge military base was set aside for possible treaty or claim settlements, but the lands are mostly contaminated from military use. The rest of the base, including 388 former military housing units, have been given to the Canada Lands Company for redevelopment purposes.
Because of Canada's rejection of this specific claim, a claim based on a unilateral undertaking of the Crown in 1864, and action to alienate the most valuable land under claim, the Soowahlie Band has been forced to go to court. Instead of economic and social benefits from a negotiated settlement of their Douglas Reserve claim, the people of Soowahlie face significant legal costs and deferral of key economic and social development initiatives.
As I said at the outset, it is our young people above all who will benefit the most from claims settlements. However, they are also the ones who will pay the highest price if Canada continues to deny its lawful obligations to our people. The experience of the Soowahlie Band shows that instead of reducing litigation and legal costs to First Nations and the taxpayers of Canada, litigation of specific claims is certain to increase if Bill C-6 is passed and proclaimed in its present form.
The Sto:lo Douglas Reserve claim is but one of many specific claims from First Nations in B.C. that involve unilateral undertakings by the Crown. The Alliance of Tribal Nations has done a summary evaluation of the specific claims from B.C. currently in the backlog, plus the 27 B.C. claims that Canada has already rejected. Our conclusion is that almost 30 per cent of these B.C. claims will be barred from being filed with the commission under the criteria set out in subclause 26(1).
For First Nations in B.C., Bill C-6 is not a specific claims resolution act. It is a specific claims extinguishment act. The Alliance of Tribal Nations notes that the Federation of Saskatchewan Indian Nations has proposed to you that the entire wording in clause 26 be deleted and that the wording in subclause 10(1) of the draft bill in the joint task force report be substituted. We believe that this change would be a significant improvement in the bill, but by itself it is not nearly enough. For this change to be operational, the $7-million cap on claims for validation by the proposed tribunal would have to be eliminated. If this were done, then the same would have to be done for the cap on claims settlement dollars that the tribunal could award, and so on.
The Alliance of Tribal Nation remains convinced that the flaws in Bill C-6 are so fundamental and numerous that the best course of action is a complete overhaul of the bill, in consultation with First Nations, to bring it into line with the provisions of the joint task force report.
To date, the Minister of Indian Affairs has refused to withdraw the bill and to return to the table. He claims that Bill C-6 is the same as the joint task force report, except for two provisions: the cap and the appointment process. Either the minister is grossly uninformed about his own bill or he is deliberately misleading Parliament. Either he and his officials should be censured for incompetence or the minister deserves to be found in contempt of Parliament.
The minister is not the only one who can sit down with our people to overhaul Bill C-6. The House of Commons Standing Committee on Aboriginal Affairs could have done so, but chose instead to fast-track the bill and allowed no substantive amendments. Now the bill is before this Senate committee. You too have an opportunity through these hearings to extend and deepen your consideration of this bill. You have an opportunity to overhaul it in a partnership with our First Nations.
On behalf the Alliance of Tribal Nations, I respectfully recommend that you take up this challenge and pursue this very course of action.
Chief Roland Willson, British Columbia Treaty 8 First Nations: I will try to be brief. I know it is getting late in the day.
I would like to thank the committee for allowing us this opportunity to speak tonight on this bill, which will have significant consequences for our people. I want to say at the outset that given the severe time constraints on this process, my presentation cannot be construed as anything approaching meaningful consultation on Bill C-6.
My name is Roland Willson. I am Chief of the West Mobley First Nations. I am here also representing six First Nations who adhered to Treaty 8 in Northeastern British Columbia between 1899 and 1914. These are Blueberry River, Doig River, Halfway River, Prophet River, Fort Nelson and Saulteau First Nations.
We are culturally diverse, and include the Dunne-za, Cree, Saulteau, Slavey and Sekanni people. My family is Dunne-za. Our treaty covers almost one quarter of British Columbia, the northern third of Alberta, Northwestern Saskatchewan and the Northwest Territories, encompassing over 900,000 square kilometres and about 40 First Nations.
B.C. relies on the rich resources of gas and forestry from our traditional lands to keep itself financially afloat.
The Treaty 8 First Nations that I am representing here today requested time to speak before the House of Commons standing committee on this bill, but were not given even five minutes on the video conference. This is very disturbing and disillusioning. Until now, our First Nations have participated in the special claims process in good faith. We believed the minister when he said we would have input into the House of Commons deliberations. It appears that our good faith was misplaced.
Now we are placing our faith in the Senate to do the right thing. It is within your power to redraft the bill so that it will be fair, and perceived as fair by the First Nations.
The primary purpose of the original specific claims policy was to establish a process to resolve First Nations claims out of court. Bill C-6 was also supposed to remove the federal conflict of interest. Regrettably, as it stands, this bill has failed on both counts. You have already heard many First Nations from across Canada and the Assembly of First Nations tell you that this bill is fatally flawed.
That is because there is a consensus among our technical, legal and political people that there are so many details that need to be fine-tuned or changed that we are concerned you will only make a few of the necessary changes and not all of them. There is a risk that because you see too many details that need to be addressed, you will throw up your hands and only change three or four.
We understand from reviewing committee hearings to date that you may be considering amendments to the bill on the insertion of a non-derogation clause and addressing the issues of delay, the cap and the appointment process. In the interest of time, we will briefly state our position on these matters and move on to other contentious issues.
We believe that a non-derogation clause to protect our treaty and our Aboriginal rights under section 35(1) of the Constitution Act must be included. To ensure First Nations perceive the commissioners and tribunal members as neutral and unbiased, First Nations must be a party to the appointment process. We believe that all First Nations with specific claims anywhere in the process, not just those accepted for negotiations, should have an opportunity to participate in the joint appointment process because they have very real interests in the outcome. The AFN should also be a part of this process.
We oppose the $7-million tribunal cap for reasons outlined by numerous witnesses before us. We also oppose the designation of settlements as discretionary budgetary items, which allows the government to put an absolute cap of $75 million on settlements in any given year. First Nations claims are legal liabilities of the Crown; they are not discretionary budgetary items.
When the government must settle other legal liabilities under court proceedings, settlement dollars come from the Consolidated Revenue Fund. This committee has said it cannot deal with financial matters or fetter annual parliamentary budgetary processes. Can the Senate suggest settlements come from the Consolidated Revenue Fund? Many settlements already do. This would just formalize the process.
The minister's ability to prevent the timely resolution of claims is a blatant breach of his fiduciary duty. His ability to indefinitely delay his decision to reject or validate a claim must be removed wherever it occurs in the bill. I will have more to say on this issue of ministerial delays later.
While many First Nations from across Canada have said they would like to see this bill withdrawn so a true joint process could be resumed, we recognize that the Senate does not want to withdraw this bill but, instead, amend it. With the greatest respect, we will propose a compromise solution. Establish a subcommittee, or a small working group, comprised of senators and First Nation representatives to carefully review amendments to the bill over the summer. Surely, this is not too much to ask to ensure that First Nations perceive the new process as fair, timely, effective and efficient; that we are not being asked to check our rights at the door. Why amend only a few clauses when a little more time could produce a much more acceptable bill than we have before us today?
Senators, we believe you are honourable and would not normally be a party to a process that sacrifices the legacy of all First Nations children for the sake of one individual's. As leaders, we cannot stand by while the Government of Canada reneges on its promises and commitments in treaties and agreements and legitimizes its sharp dealings by ramming this bill through Parliament. As leaders, we cannot compromise the future of our children or trade on the honour of our elders who signed the treaty.
To understand the specific claims policy from our perspective, you must first understand the history of our area and our relationship with the provincial and federal Crowns. In the interest of time, we will abbreviate this but more information is in the full brief.
Our people have lived on this land for a long time. There is a story that has been passed down by the elders of a giant beast that stalked the land. It chased a man but he fooled it and it fell off a cliff into the river below. Dinosaur bones have been found in this same spot.
Our people have hunted on this land for a long time. Archeological evidence from at least 10,000 year ago supports our oral history of continuous occupation of this land. Our people have been here a long time. We will be here when the oil dries up and the forest companies have moved on, when global warming or some other holocaust visits our planet. Our dreamers have told us of our place of refuge, now protected as the Klin ze za.
The Sekanni and Dunne-za people have a culture of dreamers and prophets. One of our powerful dreamers, called Makenunatane, prophesied the coming of Europeans. That day came in 1793, with the arrival of Alexander Mackenzie. He was so impressed with the wealth of animals in our region that a trading post was established in the very next year at the confluence of the Moberly and Peace rivers.
Our livelihood has always depended on the resources of the land. Fur trading companies were happy to purchase our furs and trade with us for the meat we brought to feed their people.
According to our elders, during the treaty negotiations in 1899, the First Nations negotiators would not accept the terms as read to them. We wanted a peace and sharing treaty that would confirm our rights in the land. In a document that the Supreme Court of Canada has ruled forms part of our treaty, the commissioner reported that his:
...chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed...Over and above the provisions to supply ammunition and twine, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interests of the Indians and were found necessary to protect the fish and fur- bearing animals would be made, and that they would be as free to hunt and fish after the treaty as if they had never entered into it.
We were told that we would not have to live on reserves or be confined to reserves, but that we could take reserve lands or lands in severalty if we needed them.
Some of the other treaty promises included education free from religious interference, freedom from taxes and military service, assistance for the old and indigent, agricultural implements, livestock, ammunition and twine. We were told, ``You are giving up nothing, and anything you get will be a clear advantage.''
B.C. Treaty 8 First Nations have approximately 30 claims in backlog under review in the specific claims process. At least 22 of these are related to unfulfilled treaty promises regarding land in severalty, agricultural implements, livestock, ammunition and twine, and annuity arrears.
Aside from treaty land entitlement claims, we are not sure that any of these will fit the Bill C-6 definition of a claim. We have over 20 claims in various stages of research.
Another significant broken treaty promise relates to trapping. It illustrates why the definition of ``claim'' must be reconciled with the existing definition. In the 1920s, the B.C. government decided to raise money and impose controls on trapping with a registered trapline system. The local Indian agent told B.C. the registration system violated the terms of the treaty and refused to register any Indian traplines. Unfortunately, B.C. went ahead with the scheme, and because it had no understanding of our family traplines that covered most of the treaty territory — or perhaps it did — it registered any land a white trapper wanted because it was ``vacant'' on B.C. maps.
White trappers on their newly acquired traplines encountered Indian families already trapping on their traditional lines. It was the Indians who were hauled into court, not the white trappers. Chief Dokkie from my band went to court with his whole family in 1928.
Within five years of the imposition of the registered trapline system, Treaty 8 First Nations were disenfranchised and pushed off the land. As early as the 1920s, a Treaty 8 member was arrested for shooting moose off reserve.
Canada did not defend the treaty and take B.C. to task. It attempted a trapline buy-back policy, but white trappers with no interest in the land had trapped out the territory before moving on. A B.C. conservation officer threatened white trappers, telling them that if they sold their traplines to an Indian or the Indian department, they would never get another trapline in B.C.
This characterizes our relationship with B.C. and Canada over the past century. B.C. denies our rights and Canada does not defend the treaty, thereby also denying our rights.
We believe the theft and loss of our trapline territories in the 1920s and 1930s was a direct and significant violation of the very promises used to convince our negotiators to sign the treaty. Under the current specific claims policy, a trapping claim would be eligible as a non-fulfillment of treaty obligation. Under Bill C-6, the definition has been narrowed to treaty obligations related only to land and assets. Time does not permit us to provide other examples of how the narrowing of the claims definition under clause 26 will impact us. All treaty promises have been broken or never fulfilled, with the exception of the TLE claims, treaty land entitlement claims. None of the claims we have mentioned may be eligible under Bill C-6.
We request that this committee replace clause 26 with clause 10 of the joint task force report or, at a minimum, delete the clause related to lands and assets. Otherwise, treaty nations across the country will end up in court because their specific claims will no longer fit the narrower Bill C-6 definitions.
Other nations have spoken of the need to include unilateral undertakings and address the issues around pre- Confederation clauses. We also support those changes.
Subclause 26(2) makes explicit exclusions for whole classes of claims that we think should still be eligible through this process. We can provide details on why most of these clauses prevent us from making claims for fulfillment of lawful obligations by the Crown.
There are some important impacts of the decision to change the definition of a ``claim.'' For example, the minister has said that First Nations have the option of going into the new system or staying with the old. If the definition of claims is not reconciled with the current definition, how will the Department of Indian Affairs prioritize claims under the old system and under the new system, when there do not appear to be any new resources identified to address the backlog? If a First Nation chooses to research a claim under the old definition, how will the new centre make funding decisions if it does not fit the criteria the centre is using for valid claims?
You have heard that there are over 500 claims in the backlog. We have provided a copy of the summary of the status of all claims as of December 31, 2002. Of the 525 claims under review, 227 are at the stage where arguments are being reviewed by the Department of Justice legal counsel who work for the specific claims branch of the Department of Indian Affairs. Of those 227, 135 are in the DOJ's backlog in B.C. In other words, 60 per cent of all claims being reviewed by the DOJ lawyers are in B.C. There are three lawyers assigned to deal with the specific claims in the B.C. region. To put this into perspective, there are 25 lawyers in Ottawa working on the other 92 claims for the rest of the country.
The caseload for the rest of Canada is 3.7 claims per lawyer. The caseload for claims originating in B.C. is 45 per lawyer. This is obviously overwhelming and totally unacceptable.
I am sure that these people are working hard, but there are not enough of them. Bill C-6 in its present form will not change this situation one bit. The minister will dutifully report every six months that the lawyers have not gotten to it yet, but it is his decision not to hire enough DOJ lawyers, especially in British Columbia. It is his department that sets the priorities for the lawyers. Is it any wonder that big claims get buried? There is nothing in Bill C-6 to encourage the minister to change his practice. From the perspective of B.C. First Nations, it looks like a deliberate policy to under- resource and delay the review of claims from our region.
These delays seem to be especially prevalent for larger or more difficult claims. To protect the government further, clauses have been inserted to say that no amount of delay can be deemed a rejection and it can rely on all defences in court, which seems reasonable, until you realize it has deliberately created the defence with its own delays.
We would like to propose one solution to help reduce the incentives for intentional delays. This committee could insert a clause that stops the statute of limitations clock on the date the First Nations submit a claim to the centre. The tribunal is, after all, a quasi-jurisdictional body and is a part of the centre. This is not possible. All First Nations may have to file statements of claim when they file with the centre.
The bill introduces inequities throughout. First Nations must provide all evidence and case law on which they want to rely and submit any new cases to the minister any time they arise for his untimely consideration, restarting the whole delay loop.
In return, the minister does not have to give any reasons or produce documents to support his rejection or validation of a claim. If it is rejected, the First Nation is supposed to work through a dispute resolution process within the commission to change the minister's mind. How do you discuss it when you do not even know his reasons for rejection?
If it is a large claim, you must waive compensation rights to get an opinion from the tribunal. If you choose to litigate, the government has all the documents and all the case law on which the First Nation is relying, but the First Nation has nothing. If the government has confidence in its decisions to reject a claim, it should be willing to produce some evidence as to why. The Supreme Court of Canada has said that there should be no sharp dealings by the Crown. Canada can intentionally delay a decision until there is a court ruling in its favour and then not even tell a First Nation what it is.
We ask that you insert a clause that compels the government to provide documents and give reasons for its rejection or validation of claims. A First Nation should be able to go directly to the tribunal after the minister has rejected a claim to seek a neutral decision on validation. There should be no requirement to waive the compensation over the $7- million cap to seek such a ruling. All First Nations claims, regardless of size, should be able to go to the tribunal for validation. The bill could easily be amended to address this issue by ending subclause 32(1) after ``tribunal'' and deleting paragraphs (a), (b) and (c).
There is also a significant issue of inequity and imbalance introduced in the bill with respect to validation decisions by the tribunal that we must address here. Under clauses 71 and 72, there is a particularly obnoxious condition imposed on the validation decision that is completely one-sided.
If the tribunal decides a claim is valid, ``any evidence of the decision is inadmissible before any other court or tribunal.'' However, ``if a panel makes an order that a specific claim is invalid ... each respondent party is released from any cause or action, claim or liability to the claimant, and any of its members ... (and) the claimant shall indemnify each respondent party against any amount that the respondent party becomes liable to pay'' if a band member sues a third party and wins.
A decision in favour of the claimant cannot be used in court, but a decision in favour of the Crown means the claimant has to indemnify Canada and the province against any third party action based on the same facts.
This differential treatment of the tribunal validation decision is inequitable and should be deleted.
We also have major concerns about how the allocation of responsibility for third parties would work, particularly with respect to validation decisions and the arbitrary cap.
Time does not permit us to go into all of our concerns with respect to this bill. More of these concerns are outlined in a supplementary document provided with our submission. We respectfully request that this committee seriously consider the concerns raised by all First Nations and organizations that you have heard. We believe that striking a subcommittee or small working group with First Nations representatives to review changes to this bill over the next couple of months has the potential to result in a fairer bill that would meet the lawful obligations of the Crown and address the concerns of First Nations.
The Chairman: Thank you, Chief Willson. All three presentations were well thought out. We will move to questions and discussion.
Senator Stratton: Your presentations are consistent with what we have heard before. Chief Willson, you wanted to strike a small working group over the summer. Have you talked to anyone on the government side with respect to that potential?
Mr. Willson: We have not.
Senator Stratton: Do you think that if you did, it would actually resolve the issues in the bill? Right now, having looked at the presentations of all three groups, I see that you are fairly consistent in asking for a non-derogation clause. I quote from the last presentation, by Mr. Willson: ``Joint appointment process for Commissioners,'' the ``Tribunal Cap and Claims Settlements'' and ``Delay.'' There is endless delay allowed with this bill. That is consistent across the board from the different groups that we have heard, such that if you were considering amendments, those would be absolutely mandatory, as a minimum.
Would I receive a consistent answer from each of you on that? I would ask each chief to respond, if he wishes to. Would that at least give us a bill that you think could possibly work? Do you feel quite strongly that rather than propose any amendments to the bill, it should be rejected outright?
I would ask each of you to respond. We are potentially looking at those four amendments.
Mr. Pennier: If we were to make many amendments, it would take a lot of time and thought to try to incorporate the many suggestions that arose when the AFN did its legal analysis of what is wrong with the bill. We would have to look at those recommendations. It may not be simply four, five or six recommendations; there would have to be many to make it acceptable to us.
Senator Stratton: The four amendments that I talked about would not be sufficient to make this bill acceptable to you. Those would include the matters of the non-derogation clause, the joint appointment process, the tribunal cap and delay.
Mr. Pennier: No, there would need to be many more than that.
Mr. Phillip: First, there is no question that there needs to be resolution of the outstanding specific claims. Serious attention needs to be given to the backlog. Not having access to a fair settlement process, achieve settlement and meet the growing needs is creating a huge opportunity cost in our communities. However, the proposed legislation before us is totally inadequate to achieve that result. I suspect that the opinions that you are hearing here tonight have been reiterated time and again by other presenting groups for the last several weeks.
This bill has been the subject and the object of a number of legal opinions and technical reviews et cetera. The bottom line is that it needs to be fundamentally overhauled, which would be a comprehensive undertaking.
It really frustrates us that we turned ourselves inside out through the joint task force exercise. There was an incredibly volatile and intense debate among our own people across this country about that process. At the end of the day, we agreed with the conclusion of that initiative and that went forward to cabinet. We were all hopeful that at long last we would have legislation that would dispense with the backlog. In spite of the fact that many of us did not get what we wanted through that exercise, it was an exercise in give and take; however, it did not happen. Instead, we are faced with this unilateral approach from the government. It is so fundamentally flawed that it must be taken back to a similar joint process.
The only hope for resolving the outstanding backlog of specific claims is to return to that joint process and continue that work to ensure that legislation we do bring forward is widely supported, practical and will achieve resolution of the backlog. That will take, as Mr. Pennier said, a comprehensive effort. That will not be achieved by cherry-picking three or four items that resonate throughout these submissions and simply dealing with them so that the bill will be ready by the fall. It is a serious situation that we find ourselves in, particularly in British Columbia, where the majority of these outstanding claims exist.
Senator Stratton: The backlog situation appears to be a severe problem and has existed over time. I have looked at the number of claims versus the number of settlements in the one submission by Chief Pennier. How do you deal with the backlog? Do you have thoughts on that? If we have such a substantial backlog, how do we reduce it?
Mr. Phillip: First, I have a thought about the backlog that was triggered when I listened to Chief Pennier give his presentation. We have been working and struggling with this issue for quite some time. Many of our communities were absolutely dissatisfied with the status quo situation. We put our hearts and souls into the joint task force report. Many of our communities were awaiting the outcome of that exercise. Rather than proceed with specific claims through the status quo situation prior to that report, we decided to wait for that work to conclude so there would be a process through which we could work the claims. As we know, that did not happen. That explains part of the buildup of the backlog — we are waiting for a suitable process for the claims.
One of our concerns with this proposed legislation is that when the minister is challenged about the transition, he does not really have any answers. He basically says it will happen, it will be great, and it will give the First Nations tools to build healthier, more prosperous communities. However, it will not in fact flush out the backlog. It will increase litigation and does not really deal with the problem.
Senator Stratton: I would tend to agree with you about the backlog because there is a lack of a time frame in the bill itself. The minister could take virtually forever to respond or string it out over a long period of time, without having to justify why, beyond the first instance of the six-month delay.
Mr. Phillip: I have been involved in native politics since the early 1970s. I have never before spent as much time as I have recently in Ottawa because we feel that a state of crisis exists with respect to legislative initiatives that the Government of Canada is bringing forward in a very unilateral fashion.
This bill is not viewed in isolation. There are two other bills going through the parliamentary process. They are bringing our people to Ottawa to testify before the House committee and the Senate committee. There have been countless marches and demonstrations. I was on the phone before we started here, and a march was being marshalled in Vancouver in opposition to the proposed legislation.
More important is the fashion in which it is being rammed through. That is a serious issue. That is reflected in the shortcomings of all of the pieces of proposed legislation.
Senator Christensen: Thank you for your comprehensive presentations. You obviously have major problems with Bill C-6.
You mentioned striking a subcommittee. Who would you see representing First Nations on the subcommittee? B.C. certainly has a major portion of the outstanding claims, but who would be representing First Nations?
Mr. Willson: We had thought that there would be representation of five First Nations.
Senator Christensen: From where?
Mr. Willson: It would be more of a technical group. There would be representation from the AFN.
Could you ask the question again, please?
Senator Christensen: Who would represent First Nations on this working group looking at the proposed legislation?
Ms. Deborah Smithson, Research Director, British Columbia Treaty 8 First Nations: There is already a lot of expertise within the First Nations community. There are people who worked with the joint task force for years and are very familiar with it. The chief's committee on claims established through the AFN has worked extensively on this and is very familiar with the issues on the bill. A great deal of First Nations expertise is already available. There has been a great deal of analysis of the bill. It would take very little time to get a strong working group together.
Senator Christensen: I was wondering if you had in mind how it would be made up. We are talking about a small group that would represent all of the First Nations that have made presentations and have concerns with this bill.
Ms. Smithson: It would be fairly easy to create a working group of technical people and chiefs, and we would probably be able to develop an information flow system to ensure that there is communication with all First Nations.
Senator Stratton: When you say a small working group, that is always a matter of definition. What does ``small'' mean? Do you have a number in mind? Is it 10, 20, 50 or 100?
Ms. Smithson: I expect the Senate has probably dealt with working groups or subcommittees in the past, and you might have some ideas about that.
Senator Stratton: How about five?
Senator Gill: A good number of working people.
Senator Stratton: I was just concerned about scale. If you want to make it inclusive, then it has to be a reasonable size. You would want to ensure that it was inclusive and people were not being deliberately left out of the process. If you have a communication system, as you mentioned, perhaps that is the best route to go.
Mr. Phillip: That is a key question. After having some discussion within our own circles, someone sitting around our table would say, ``We already have the infrastructure in place through the joint task force exercise.'' The people who have expertise in this issue, specific claims, were drawn together in this process. Since the issue is national in scope, and specific claims issues exist all across this country, many individuals would become aware of this hypothetical initiative. At the end of the day, you would end up with the joint task force infrastructure that would include the expertise that was referred to here.
Many of the submissions that have been made, and certainly comments that we have heard, indicate that we need to return to that joint process in order to bring forward legislation that will be supported, that will work and that will deal with the backlog and all the claims that come after that. In our view, that is the only solution. This particular piece of proposed legislation just will not bring about that kind of outcome.
Senator Christensen: Perhaps your suggestion could be that you just pull the task force back together and look at redoing this proposed legislation.
Senator Austin: I must add a special welcome to my colleagues from British Columbia. Thank you for your presentations. They tell a very good story about your situation.
As you know, I am the sponsor of the bill. That means that the minister and the government have asked me to support this proposed legislation in the Senate and in the Senate committee. I agreed to do that after looking at the background of the bill.
As you may be aware, the minister has indicated to us that he is prepared to make some amendments and recommend those to the cabinet.
I will start by making some comments for the record. First, it is always difficult when you are dealing with the Crown — and that is not just your community, but anyone — because the Crown not only has the role of entering into contracts and agreements, but it also has the right to legislate, which is the right to change whatever is in place. That is our system and you are familiar with it. You deal with it.
What took place here, as I understand it — and I invite your comments — was a very effective joint task force process in which government officials and officials representing the constituencies of the AFN worked hard and came to certain conclusions. Those conclusions have been given to us. We have looked at them and compared them with what the minister produced in the bill. There are differences. Chief Phillip, I believe you said the minister said that there were only two things he changed. One was the consultation process and the other was the cap. There are other changes. The minister sees those two as perhaps the most significant.
The situation always comes down to whether half a loaf is better than no loaf at all. That is one of the great issues of life.
I am not advocating Bill C-6, either personally or on behalf of this committee, as a full loaf. I acknowledge right off the bat that this is, at best, half a loaf, and the question is whether half a loaf improved by some amendments is worth trying, compared to the alternative, which is no bill at all. You can negotiate and talk all you like, but if one party is not willing to cut a deal, there will be no deal.
The government has made an offer to the Aboriginal community. It is not the joint task force report; it is a version of it. You might say it is a pale version of it and I might agree with you, but it is a version. How does it improve the current ICC? I would say, step one, it takes the process out of the department and creates a separate entity to deal with it. I will acknowledge that — and we have had the evidence here — that there are a number of players now in DIAND that you would expect to be on the tribunal; or let us say we suspect might be appointed to the tribunal. The question of impartiality is very important. How do we achieve that? A number of people have raised the question. Rolland Pangowish and Bryan Schwartz, representing the AFN, and other witnesses have raised the question of impartiality. We are concerned about it and we have proposed some amendments. I cannot share them with you, but I can mention them to you. We have proposed some amendments to the bill with respect to impartiality.
That is one step. The provision of adequate funds, as you all know, is something that the government proposes. In the Senate, while we have powers to amend that which is sent to us, we cannot initiate a spending proposal, but one advance, in my opinion, as incremental as it is, is that the centre, with its commission and tribunal, will be a separate line item and therefore the money segregated for this process will have to be identified in government budgeting. At the moment, it is a sub-sub-item in the department and subject to internal transfers when the bean counters get their pencils out and say, ``My God, there might be $10 million lapsing in that program, let's take it,'' and therefore one or two more claims cannot be concluded.
I want to tell you that we are not happy as a committee — at least I am not, as the sponsor of the bill — with the existing cap. It is probably a deterrent to the use of the tribunal because it is the tribunal's role that is presently capped at $7 million. It probably would not be a deterrent to the use of the commission, and maybe that is a plus, that at least the commission will look at more claims.
The non-derogation clause is quite a complex issue. The government has introduced a motion in the Senate in the last two days for an examination by a Senate committee of the role of the non-derogation clause in federal legislation. That is fine. I think it is excellent, frankly, but that consideration is not going to be concluded before the end of this year, and that does not help us with this bill. The committee will have to debate its choices with respect to this bill.
The limitation on the jurisdiction of the commission and tribunal process, a narrowing, I believe, from the 1991 provisions, is also troubling. The government has said that its priority is to deal with the narrower set of land-based agreements and undertakings, and it feels that that will help to accelerate resolution of the issue, and that the others are of a different character. The government has not said how the other issues will be dealt with.
The last item that I will mention specifically in our examination is the power of the tribunal, and perhaps the power of the commission, I am not sure, to compel documents and witnesses. Again, Bryan Schwartz complained to us about the lack of subpoena power to deal with evidence that was not volunteered. Third parties can have evidence, not only the claimants, or a claimant may know that the Crown has evidence it has not produced. They may know of research; they may know of a report; they may ask that it be compelled, and that is something that we would like to better define here.
I have no doubt at all that there is much value in your submissions when you outline the specific illustrations of claims, as all three of you have done here, the Douglas claims and others that you have mentioned. I come back to the half a loaf. We have a choice. You have said to us, as your opening position, ``Let us put this aside and go back to a working group.'' The government is saying, ``We are not interested in doing more joint task force work. We will listen to some of the suggestions of the committee with respect to amendments.''
It is our responsibility, but we would like to listen to you. Are you prepared to propose some amendments to this bill and discuss them with us so that we can consider, when the evidence is in, what we should do in terms of amendments?
Mr. Phillip: I would like to start by saying that we have a somewhat symbiotic relationship here. We are all charged with very high-level duties to do our utmost to see that some measure of justice is brought to the historical issue of these outstanding obligations on the part of the Crown. We have been through this issue and we recognize that the government has said that it is not interested in going back to a joint approach.
I would like to point out that that statement was made by the current government. I think we all know that there will be significant change in the Government of Canada in a very short time. We have reason to believe that the new government will take a somewhat different view, and public statements have been made to the effect that there will be a greater effort toward joint initiatives.
The question I see in this proposed legislation is not so much whether half a loaf is better than none, but whether two crusts are better than one, and I say they are not.
There is absolutely no way we can cherry-pick a couple of amendments and say this is something that we think should be in place, will be palatable and somehow bring about the end result we all seek. I do not think that that is an option.
Finally, I would like to say that we do have the current system. We have the Indian Claims Commission, which allows us a measure of redress in dealing with the claims. I think that we can continue to do that until such time as there are fundamental shifts and we return to the spirit of the red book, the Throne Speech and all those statements from the Government of Canada about how we need to work together, with mutual respect and trust, et cetera. I think that is the only way we will resolve this.
The Government of Canada has the option, of course, as we all know, to ram it through. We will then be left with the consequences. We will be looking at more litigation and more conflict. There will certainly be irreparable harm to the relationship between First Nations people and the Government of Canada.
Senator Austin: I will ask you a question, Chief Phillip, because you made an intriguing statement in your evidence. In response to Senator Stratton, you described the legislative environment. I got the impression that Bill C-6 would not be generating the same emotional charge if we were not looking at a government program that also includes Bill C-7, and maybe you would even include Bill C-19, I am not sure. Is it fair to say, as I thought perhaps you said, that if we were looking at it on a stand-alone basis without all the other problems in the relationship, you might be willing to open a dialogue on amendments?
Mr. Phillip: I am saying it is clearly evident to us that the current government has no appetite for going back to the joint task force approach with respect to any of this proposed legislation. It seems that there is a legacy issue involved. We think that we are almost being viewed as unfinished business vis-à-vis 1969. That has not helped the manner in which this whole legislative agenda is being advanced.
I am hopeful, and I am fervently praying, that we will be able to set this aside until we can get back to that spirit of cooperation and partnership that is reflected in so many government statements yet does not seem to materialize.
Senator Austin: Do you see the three pieces of proposed legislation as really one set that should all be reviewed and reintroduced together in the future? Is that your submission?
Mr. Phillip: Yes. As I indicated earlier, there is a pattern. There is a distinct flavour to all of this. First Nations people from coast to coast to coast do perceive it that way. It is unfortunate, but that is what we are faced with at this time.
Senator Austin: I know from the remarks that you have made that you have studied the evidence. All three of you have made that clear in your submissions. I would like to mention to you that there are First Nations who have been willing to discuss amendments. It is not the case here that there are no amendments on the table. We have had a number of submissions from First Nations willing to discuss amendments and the way in which those amendments would be shaped. It will be difficult for this committee, but we will come to discuss all of these issues.
This may not be relevant, from your remarks, Chief Phillip, and the others I am assuming — unless they can say something on these subjects — are in agreement with you. For the purpose of this comment I will assume that. The question of consultation on appointments by the minister has been one of the interesting issues to discuss. As you know, the minister has written a letter to the AFN saying he is prepared to consult, and that is it. ``Give me your ideas and I will think about them.''
I am reserving your position that we should do nothing here. However, having understood that that is your position, if we consider some amendments in any event, the question we have been asking various leaders is: Do you want to be consulted with respect to appointments or are you satisfied that we get our advice only from the AFN? It would be so simple to ask the AFN what you think, and then the AFN has to do all the work of consulting everyone and coming up with a list. Or should we be consulting with the claimants, the people who actually have a stake in the outcome of the process — that is not a problem in this technological age. We know who everyone is — and saying, ``Do you have suggestions?'' Should we be consulting only with the AFN or should we be consulting regionally? Maybe B.C.'s view is different from that of Saskatchewan or Ontario. Without prejudice, as we say, to everything you have said about going back to a joint working group, do you have a comment on that?
Mr. Phillip: Based on all the political debates and discussions that we have had, as well as the legal opinions and so on and so forth, the inescapable conclusion is that this particular piece of proposed legislation is not even close to achieving what we are all attempting to accomplish. We feel the only way that we can get this issue back on track is to get back to the joint approach that was reflected in the joint task force.
I do not think it is entirely accurate to characterize the Union of B.C. Indian Chiefs that I represent as putting forward the option of doing nothing. We are saying this is a very serious issue and we should not do irreparable harm. My colleague talked about that fundamental medical principle, do no harm, with which this issue needs to be addressed. The backlog needs to be dealt with. I do not think that putting a new coat of paint on this proposed legislation and hoping it will achieve that is a prudent or responsible thing for us to do. We have the will on our side. We have the infrastructure through the previous process. There is just no reciprocal will on the part of the minister. They want to ram this through and be able to say, ``We did that. We did Bill C-6.''
Senator Austin: If you have to live with the status quo for several years, you will not be happy about it, but that is your preference.
Mr. Phillip: I do not think it will take several years. I think there will be a change, a shift and a breath of fresh air.
Senator Austin: I want to thank you, Chief Phillip, for your responses and the way in which you have submitted them.
Senator Gill: I want to come back to the questions already discussed. We have to admit that most of the groups — I think my interpretation is correct — who appeared before us said, ``We would prefer to forget about this bill rather than make some amendments.'' Most of the groups said, ``Why not have more discussion and more consultation and then think about a new bill?'' I think that was the general consensus that we heard.
I would like to come back to the results of the task force. The bill does not reflect, according to you, the results of this joint task force established by the Department of Indian Affairs and the AFN, I think.
I imagine mandates were given when this task force was established, and that since the department and the AFN were involved, there was agreement on its terms of reference. Do you remember that? What were the terms of reference? Sometimes, people think that when the minister is consulting the Aboriginal people, that is, First Nations, he does not have to follow the results of the consultation. However, at the beginning, when you establish certain terms of reference, you then have certain obligations that you have undertake. Do you remember?
Mr. Phillip: My sense was that it was a cooperative effort, a partnership effort, up to the end. In spite of that big internal debate we had that was quite often not pretty, in the end we agreed, and there was much optimism that we would actually achieve legislation. It seemed to hit the wall somewhere in cabinet. It was common knowledge in our circles that cabinet would endorse it, and then it did not.
Senator Gill: I just read some terms of reference on this. There were some terms of reference.
Mr. Willson: I would like Ms. Smithson to respond to that. She is up to date on what is going on.
Ms. Smithson: I would echo what Chief Phillip said. There was a very clear understanding that the minister was being kept informed of the process and the progress. There was a mandate and authority for the government people who were working on that. We had faith in the system.
Mr. Pennier: I want to say a little more the issue of consultation. The law is changing. Whenever you talk to First Nations, if we disagree with a lot of things, then there has to be some accommodation if you are going to continue with what you want to do. There is no accommodation on any of these kinds of issues.
The Chairman: Just a point of information, there was a change of ministers during all of this. It was Jane Stewart to begin with, and then in 1999 Minister Nault was appointed, so that might be partly why these things are happening now. That is an interesting point.
Senator Léger: Two points: first, the government is ramming — to use your word — this in, absolutely. You say, take the time, and you are not the first ones to say that. What is the rush? On the other side, you have backlogs where time seems infinite. It seems to me it is the same problem. On one side, it takes so long to deal with the backlogs, and yet you want to take a long time to think about this. That is what I hear.
The second point is about the half-a-loaf idea. I heard something new for the first time tonight. Now, how final — not to say eternal — is Bill C-6? That cannot be a first step, that half a loaf, with the amendments and all the work that is going on. However, listening to you, Chief Phillip, I hear for the first time that there is going to be a change of government. Good Lord, has the whole situation fallen apart now? Do you understand what I mean? I have less experience than many around the table here, but is it not becoming a game? Perhaps that is not the right word. However, what is going on?
You just mentioned, Madam Chair, that there was a change of ministers. Well, with respect to Bill C-6 — or anything — it is so important that what we are all searching for, hopefully, is not on that level.
Mr. Phillip: To respond briefly, what certainly is of tremendous concern to us is that the backlog itself represents a certain value, a certain potential in terms of the value of settlement. It is what that potential value can do in addressing the growing socio-economic needs in our community. The Government of Canada, the federal government, is proposing, ``You have a significant potential value here. We will offer a process where, in order to translate that value into compensation so that you can begin to address some of these issues in the community, we will ask you to sign away everything above $7 million.''
Senator Léger: I was not talking about the cap. I think that we all hope that that will change. I understand what you are saying about this value, if you could get it. Do we have it? I know we took it away at the beginning. You want to solve your social problems and if you had that —
Mr. Phillip: I think you understand. If your home was worth $3 million, and I said I would give you $70,000 for it and you should do this deal, you will say, ``No, I do not think so. I put too much into it.''
I think the other issue was change in government. What I said was, ``changing the face of government.'' It is pretty obvious that will happen.
Senator Léger: Even that should not be in here.
Mr. Pennier: To respond on the backlog issue, the statistics he was given are that the ones who are reviewing the claims out of British Columbia had 45 files each. That will take them a long time.
If there were more people to review it you could move it faster. If you want to get through the backlog of the outstanding claims, it could be done, because many of them could be taken off the table. They would not even be discussed because they would not meet the criteria. In the end, that would simply lead to more litigation. Our preference is to negotiate rather than litigate.
Mr. Willson: I concur with Grand Chief Pennier.
If the bill goes through as it stands now, it will create a greater bottleneck. It will narrow the definition of ``claim'' and we will be forced to go to the courts on the other issues, given that there are only three lawyers in B.C. taking care of the claims at this time. The proposed amendments, the definitions and the overall changes would loosen it up. As far as I know, a bill has never been thrown out. This will be approved.
Senator Austin: We have thrown out bills and we have suspended bills.
Mr. Willson: The suggested changes to this bill are not that far-fetched that they could not be adapted. With the working group, the joint task force, the problem arises with the definition of ``claim'' and whether it will bottleneck the whole system.
The Chairman: The Federation of Saskatchewan Indian Nations appeared before us and proposed five amendments for us to consider. They stated that that would at least be a beginning — a framework for future negotiation. Are you aware of those amendments that the FSIN proposed to us?
Mr. Phillip: No, we are not; at least our organization is not.
The Chairman: I was led to believe that those amendments were developed in consultation with the AFN.
Mr. Phillip: That is where I first met you. We were undertaking a lobbying initiative during the course of our meeting in December and I ended up in your office with the FSIN group. You heard two differing views, and I heard about it the next morning. Each of us was given a lobby kit and we visited a number of senators. I walked in on that meeting where they were talking about the notion of some amendments. When we left the AFN meeting, we talked about withdrawing the bill and going back to the joint task force report.
Obviously, there are different views in our world just as much as there are in yours. To my knowledge, there has been no widespread endorsement of the five amendments. Again, the proposed legislation is national in scope. I certainly respect their right to advance their views, the same as all of us have that right.
The Chairman: I have one more question. If we throw this bill out, we will return to the status quo. You are saying that there are 45 claims in B.C. per lawyer and that the backlog is huge, which we know. Would you be willing to return to the status quo rather than have this bill at least begin to develop the framework?
Also, the minister has said that if this bill is adopted, it will be an opt-in situation, which means that the claimants do not have to go through the new process; they could still stay with the old system, if they are already in it.
Could I have your comments on that?
Mr. Phillip: What was the first question?
The Chairman: Do you want to stay with the status quo if we throw this bill out?
Mr. Phillip: Yes. This notion of opting in is an old story that we have been told by government many times — that there is an option in respect of the claims process. One of the presenters made reference to the notion that there could be two tracks operating concurrently. I have no faith that that would ever happen.
Ms. Smithson: I would like to make a comment on that point. We talked about that two-track system in our presentation. The point of that comment was that under the current bill, there is no possibility that it could work because there are funding and priority issues and the backlog. How would the Department of Indian Affairs address claims that are in the old system and claims that are in the new system when they have not identified any funding to deal with the backlog? We have claims that are over 10 years old sitting in the backlog and some First Nations have claims that have been there even longer.
If we choose to keep those in the backlog, because the majority of our claims will no longer fit the new definition, then that is not an option. The option you end up with is to litigate. Why would the minister move on claims that he has not moved on so far? We do not think that would work at all and there are serious concerns about it.
Mr. Pennier: We would prefer to stay with the status quo at this time and not go through with this proposed legislation, even though there would be a larger backlog. Some of our communities have chosen not to put their claims in at this time because of the uncertainty of what will happen. If the status quo were to be maintained, they would probably submit the claims. That way, they could hope to be number 531 and have it resolved in about 100 years or so, provided the government continues to resolve about 8 per year.
Senator Stratton: It is interesting that we talk about the only resolution to this being to either accept the bill, as amended — hopefully with at least four or five amendments — or to reject the bill and bring a new one to the table after another consultation.
You created a breath of fresh air when you talked about coming back in the fall, if we thought about this idea and had a commitment from the government to look at an alternative working solution. You suggested that we get a small working group together over the summer with the Senate Aboriginal Committee and put together a Senate bill that we would present in the fall, in addition to this bill as amended. You would then have the bill coming into effect, but knowing that there would be a subsequent bill coming down to repair the damage that you feel has taken place. Would you consider taking that route?
Mr. Phillip: That sounds like quite a piece of horse-trading.
Senator Stratton: It is, and I am trying to figure out the horse to trade.
Mr. Phillip: Again, the short answer is no. I do not believe there are simple solutions to this. I do not believe there are shortcuts. The issue is very serious, to the point where we must go back to the JTF exercise and bring forward a legislative proposal that could work effectively.
Given all of the work that went into the joint task force report, it is not reinventing the wheel. It takes us all the way round the mulberry bush, so to speak, to political will. We talked about the Government of Canada, through the minister, saying it is not prepared to do that. I am thinking that there will be someone sitting in that chair who will say, ``Let's do it. Let's go back to the joint task force report.'' I am optimistic.
Senator Austin: I would like to go back to the conceptual level, not Bill C-6 as it is, on the topic of sovereignty. What is your view of the question of status? Are we talking here about joint sovereignty? Is that a concept that really underlies your position? Are we talking about a working partnership of your particular communities and the government?
You are very familiar with Chief Roberta Jameson, who made a presentation to us. Her argument is, ``We were a nation before Canada came. We are a nation today. We are independent of Canada. We are prepared to have a friendly peace treaty relationship with you, but we are not prepared to recognize the way the country is organized today.'' Would you take that position, Chief Phillip?
Many other communities have basically said, ``We are part of the Canadian nation, but we have inherent rights through section 35 and everything that came before section 35. Our rights stem from the Royal Proclamation as affirmed in section 35.''
Those are two completely different tracks. I wonder from where you would start?
Mr. Phillip: Let me start by saying that I have the greatest respect for Roberta Jameson. She is a breath of fresh air. I sincerely hope that she will be the next national chief. She has the energy and sense of commitment to deal with many of these issues and not perhaps put them aside. I have a lot of faith that she will be able to move through these issues with more success than we have experienced in the past.
We are seeking here a just resolution and a fair and equitable settlement of the specific claims issues, where historical injustices and wrongs were visited on our First Nations communities. There must be redress. We need to ensure that the government understands that and that we have legislation to facilitate that.
Senator Austin: I was thinking about your comments that included Bill C-7 and perhaps Bill C-19. You said that they were essentially one initiative.
Mr. Phillip: It is the same. There must be fairness, equity and justice.
Senator Austin: Could I say you are more focused on the pragmatic result than on the ideological starting point? Would that be a summary? Or is the starting point just as important as the result?
Mr. Phillip: The joint task force report exercise was not undertaken within a sovereignty framework or anything like that. It was framed through a collective effort by communities that have suffered alienation of land across this country to establish a fair process to resolve those issues. It was not an esoteric debate on sovereignty, self-determination, fundamental human rights or anything like that.
Senator Christensen: We have talked about a subcommittee or small working group to look at this subject and come up with a fresh start. Thinking back on the other presentations we have heard, it is quite obvious that we do not need another subcommittee, or another working group. The task force, in your opinion and the opinion of others, came up with the solution with which everyone on the First Nations side was happy. If that were revisited and legislation were drawn from that, there would be no requirement for a working group because the work has already been done; is that correct?
Mr. Phillip: That is basically what we are saying.
Senator Christensen: Then our job would be to ask the minister to look at the task force recommendations and give reasons why they were not followed.
Mr. Willson: I concur with what Chief Phillip has been saying. There is no reason to reinvent the wheel. Throwing the bill out is one option. When the two parties get together to work together, bridges are built. We saw that with the joint task force. It is when this paternalistic instinct takes over and someone decides they will do something for someone else's well-being without the other partner being involved that things start to fall apart.
A significant amount of work has been done here, be it good or bad. The First Nations want to see many changes. I am not opposed to throwing the bill out. I am not opposed to looking at what we have here and trying to make this thing work. I am worried about the rushing through this. If we take our time and do it right, we could have a good document from which we could work. If not, then you have heard from all of the First Nations that have come here. I was here yesterday. I heard the same thing yesterday that I heard today. I am assuming that everyone who has come here has said the same things.
The Chairman: Would you agree with what Senator Christensen has stated, that we do not need another working group because we already have one?
Mr. Willson: If it is already there, why reinvent the wheel?
Senator Christensen: Is it already there, that was the question I asked you.
Mr. Willson: It was established.
Senator Austin: I have one observation, which is that I think Chief Phillip and his colleagues will still be coming to Ottawa quite a lot.
The Chairman: I thank you all very much for coming. I hope you are satisfied with your presentations and the dialogue that we have had. I know that we are very satisfied. Your remarks and your concerns are being taken seriously. Thank you for following through on what the committee hearings are all about.
The committee adjourned.