Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 18 - Evidence of June 11, 2003
OTTAWA, Wednesday, June 11, 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 6:25 p.m. to give consideration to the bill; and clause-by-clause consideration.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: We will now begin the hearing, but first of all, I would like to congratulate Ms. Dupuis on her appointment as chief commissioner.
Tonight we have the responsibility in this committee to review 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.
Ms. Renée Dupuis, Chief Commissioner, Indian Claims Commission: Joining me at the table is Commissioner Dan Bellegarde, who has been with this commission for the past 11 years, for 4 or which he acted as co-chair. On my left is our commission counsel, Ms. Kathleen Lickers. Behind me we have all the other commissioners: Commissioner Roger Augustine, Commissioner Sheila Purdy, Commissioner Alan Holman and Commissioner Jane Dickson-Gilmore.
[Translation]
Our presentation this evening is based on the experience of the Indian Claims Commission following consultations and discussions we have held with representatives of the Department of Indian Affairs and Northern Development, including Chief Edward John, who played the role of intermediary between the department and First Nations representatives.
Our discussions were useful and enabled us to add to the specific expertise of our commission and the historic work of our commission, which forms the basis of our presentation to you this evening.
[English]
That position is outlined in detail in the statement, which was distributed to the members of the committee prior to our presentation. It is not my intention to present that paper to you in its entirety here. I will highlight its elements and answer any questions concerning it.
[Translation]
It is important to remind the committee that we have 57 years of history. The federal government has made efforts to find a solution to this important challenge, that is, specific claims.
This modern process traces its roots to 1946, when the government of the day struck a special joint committee on the House and of the Senate to investigate the administration of indian affairs.
[English]
As part of its final report in 1948, this committee recommended the creation of an independent and administrative tribunal to adjudicate on Indian claims and grievances. Although no such body resulted from those recommendations, the government continued to contemplate the creation of this or a similar body. Finally, in the wake of the Oka crisis in 1990, the current Indian Claims Commission was established under the Inquiries Act to investigate and make recommendations on claims brought before it.
The commission is now in its 12th year as an interim measure. Over its lifespan, we have recommended the establishment of the sort of independent claims body contemplated by the special joint report of 1948, and this commission has been consistent in repeating its recommendation that we need some form of independent, permanent body to address these specific claims.
Insofar as the Indian Claims Commission's position is informed by our experience with claims and our consultations on and analysis of Bill C-6, an equally compelling influence on that position is the unique position occupied by the commission within the claims arena. As an independent body charged with the mandate of inquiring into and assisting in the mediation of specific claims that have been rejected by the Department of Indian Affairs, the ICC must at all times preserve its neutrality and objectivity in regard to the parties and interests that may come before it.
[Translation]
I would like to stress on this particularly important part of our mandate, that is, the commission's neutrality and objectivity. It is important that we deal objectively with the government and First Nations in considering specific claims.
[English]
We cannot advocate for either First Nations or governments, rather, we must advocate for a process for responding to claims that is rational, ethical and fair to all parties. It is in that spirit that we appear before you today. It is the position of the Indian Claims Commission that in order to be an effective instrument of social justice for all Canadians, an independent claims body must be based upon fundamental principles.
These principles will be articulated through a body that is independent, has the authority to make binding decisions, constitutes a viable alternative to litigation to the parties, recognizes and upholds the right of First Nations to provide oral testimony of their history, provides mechanisms for alternative dispute resolution, ensures access to justice, ensures access to information, and finally, ensures the primacy of the fiduciary duty between First Nations and the federal Crown.
[Translation]
The principle of independence lies at the heart of the issue. Our position is that an organization like this one can only be genuinely independent if it does not depend on an outside authority, be it a department or a minister, to fulfil its mandate. But independence means much more than that for an organization dealing with such claims. In our opinion, such an organization must also be impartial, neutral, objective and fair in its procedures.
[English]
We believe that if the new centre envisaged by the Bill is to be successful, it is vital that this principle of independence be both real and apparent to the public and the parties. Those who seek its services can realize this imperative through consultation on appointments to the commission and tribunal, as well as through the confirmation of an authority for the centre to compel proper action and adherence to the processes. At this point I must state that a precedent of consultation was established when the original appointments to this commission were made in 1992.
[Translation]
If the process is to be fair, an independent organization must have the authority to make binding decisions.
[English]
It is imperative that this authority applies not only to the determination and execution of outcomes, but to the process by which those outcomes are reached. It has been the experience of the commission that parties will sometimes impede the process through delays or the erection of unreasonable and unnecessary barriers. These actions not only frustrate the parties, but also undermine the credibility of the commission. Given the power granted to the minister by the bill to control when and if the commission and tribunal can act, the credibility and efficacy of the new centre may be similarly at risk.
[Translation]
The third principle we would like to bring to your attention deals with the ability of the organization to keep and maintain control over its own procedures, which would enable the new centre to offer a viable alternative to the courts. The centre must be perceived by all parties, including First Nations, as being an efficient organization whose work is speedy and its decisions final.
[English]
The bill recognizes and incorporates the inclusion of oral history as a valid and important source of evidence and information about a claim and reinforces the experiences of the commission, as well as the courts, in this regard. This is a positive step that bolsters the fairness, fullness and finality of the new centre's processes.
The need for alternative dispute resolution processes constitutes a further important aspect of the claims process. These processes must be fully resourced in human and monetary terms to be effective and accessible for all the parties. In the absence of adequate resources, such alternatives will be more illusory than real and will do little to encourage the cost efficiency, validity and finality of the new centre's processes. Access to justice must characterize the new centre and its processes. A First Nation must have reasonable access to the claims process in order to ensure justice is both done and seen to be done.
The gathering of oral evidence and the provision of necessary funding are important to First Nations' participation in the process. We are concerned about the resource limitations, both specified and anticipated, which characterize access to justice in the bill. In particular, we are concerned about the restrictions imposed on the tribunal by the financial cap and the unknown prescribed limits to funding, which may impede access to justice under the proposed legislation.
Full and fair participation in the claims process presumes that parties will have equal access to evidence, including that which may be found in government documents.
[Translation]
Access by First Nations to government claims documentation is, in our view, a question of justice and efficiency. It is the only way of giving First Nations the opportunity to build their case, to prepare effectively and to participate fully in the process as an equal partner.
[English]
It enables the First Nations to be better prepared and participate in the process in a full and fair action. We are pleased that the bill introduces fiduciary obligations as an element of the type of claims First Nations may bring forward. However, we are concerned that this constitutional principle is in danger of being compromised by transferring responsibility for some elements of claims to provincial governments, which would diminish the federal responsibilities. On the basis of our experience of the past 12 years, the commission believes that in dealing with the issues and substance of First Nations specific claims, the eight principles outlined and described here constitute the minimum standards that must be met to achieve a fair, just and final claims process.
As an independent neutral body, it is not our place to articulate the precise wording or provisions that will see this standard attained or surpassed. To those who look carefully and through the lens of a principled perspective, the degree to which the centre envisaged by the bill approximates those principles is clear. We encourage the committee to adopt this perspective and apply it to your consideration of the proposed legislation.
[Translation]
Since the commission is neutral, it is not up to us to determine the specific wording of the bill.
[English]
While the bill has some positive qualities, including the creation of a completely independent tribunal, the emphasis on alternative dispute resolution, the inclusion in the proposed legislation of fiduciary obligation, the inclusion of oral history in the claims process and a mandatory review process, the bill is flawed by some problematic elements. These include those portions of the bill where the principles of independence, the authority to make binding decisions, access to justice, the primacy of the fiduciary obligation and the review, which is not on its face inclusive of all parties, are found wanting. We have outlined these strengths and weakness in detail in our formal written statement.
It is important to understand that while both positive and negative aspects characterize the bill, there is one reality that may undermine the former and exacerbate the latter.
The Chairman: I have to apologize. The Senate has just resumed sitting, so we are obliged to adjourn for five or ten minutes because we have not been given permission to meet while the Senate is sitting. This is just another added issue that we have to look at.
The committee was suspended.
The committee resumed.
The Chairman: Ms. Dupuis, please continue.
Ms. Dupuis: There must be adequate dollars available for settling claims. In the absence of monetary resources, the claims process will be undermined, agreements will not be final and social justice will be compromised.
Our goal, and our obligation, has been to achieve social justice through a fair, just and equitable claims process. We believe that a process that clearly articulates the principles we have outlined here will have the greatest potential to achieve social justice for all Canadians.
[Translation]
Social justice certainly lies at the heart of specific claims settlements. These cases affect people's lives and their communities. This is probably the most important reason why we need an independent process to give First Nations the opportunity to be heard fairly.
[English]
We are aware that representatives of the Assembly of First Nations and the Minister of Indian Affairs have appeared before you. We would like to offer our assistance to the committee in clarifying certain matters that were raised during the questioning of the minister.
Under the current process, the Indian Claims Commission is mandated under the Inquiries Act to review the basis of the minister's decision to reject a claim on the grounds that there is no outstanding lawful obligation. Our findings and recommendations are the result of a thorough investigation, which includes oral history. They do not result from meetings between the parties. They require the cooperation of all sides. Where necessary, we have the right to subpoena, a right we have never had to exercise. Nevertheless, First Nations will not have the option of an independent review of the minister's position on the validity of claims of any size.
First Nations who value their claim within $7 million have the option of proceeding to the tribunal for a binding decision. I am also aware that the minister stated his belief that a stronger tribunal would exist if there were no financial limits on claims settlement.
Thank you for the opportunity to present our views on the proposed legislation to your committee.
Senator Austin: What has been the experience of the commission with respect to the use of subpoena? You have never had to actually subpoena a witness or a document; is that correct?
Ms. Dupuis: Yes.
Senator Austin: Is the fact that you had the power to do so the reason you did not have to actually do it, or has it mattered at all in terms of gathering evidence?
Ms. Dupuis: When we speak of the need for power to compel the parties, it refers to our experience of having the power to subpoena. I believe it is an incentive for the parties to move on.
Mr. Daniel Bellegarde, Commissioner, Indian Claims Commission: I was anxious to test the limits of subpoena powers; however, I was dissuaded by legal minds. There was an instance when we requested the presence of an expert witness. We wanted to be able to say that if we did not receive the expert's testimony, we might be forced to use our subpoena powers. We have had cooperation from both parties during our inquiries, within the limits of their existing resources.
Subpoena powers have been there, and the ability to provide compellability in an inquiry is important to the operation of a commission.
Senator Austin: I will assume that the existence of the powers has helped the work of the commission, and it helps when you do not have to use them.
We see the division of the functions in the bill into a facilitation process under the commission and then an adjudication process under the tribunal; do you think that dichotomy will be workable? Do you think the model of the present bill will facilitate the parties being brought together face to face? In the one instance, they can move to a tribunal by agreement. What is your view?
Ms. Dupuis: I would say that the experience of this commission in mediation and facilitation, bringing the parties together, is very telling, in that it helps some parties to reach agreements, to settle some of these claims. It is not the fact that the commission has the power, the authority, the resources to do that; it is the perspective of the commission. In the bill we see a clear indication. We agreed that alternative dispute resolution is an important mechanism that can be introduced into this process. We have experienced that and we think it can be expanded, and that is an important role for the new commission.
I see the benefit of an adjudication mechanism, because at some point — it could be at the outset or in the middle of a very specific issue or a larger, more substantive issue — after having exhausted all alternatives, the commission will come to the conclusion that we have to have somebody who makes a final decision on an issue. It is a combination that is workable, and there are examples in other areas in this society where we have a combination of adjudication and facilitation.
Senator Austin: Can you give us your view of the funding issue? You were saying that access to research funding was one of the most difficult areas in achieving claims settlement and your funding comes from the departmental budget.
Ms. Dupuis: I might ask Ms. Lickers to respond.
Senator Austin: The larger question is what have been the problems in achieving adequate research funding for the Indian Claims Commission? I would like to know how it is set up today.
Ms. Kathleen Lickers, Counsel, Indian Claims Commission: The Indian Claims Commission from its inception has never had a mandate to manage or distribute funding. The First Nations who are accessing the commissions' process as an alternative to litigation access that money through the Department of Indian Affairs. It is been our experience in the 12 years in which we have been operating that First Nations are under-resourced in the preparation of their claims and in the means by which they can present their claims, be that the retaining of legal counsel, the retaining of experts or their own time in researching and preparation of a claim, even once it comes before the commission. You have to understand that by the time the First Nation appears before the commission, a lot of work and years have transpired. You are talking about accessing funding in a process that is inadequately resourced.
Senator Austin: I want to be clear that a First Nations claimant is obtaining funds to research the validity of its claim from the department directly. The department has decided that there is some validity to the claim and is willing to provide funding for the research?
Ms. Lickers: That is right. I would like to add that it has been the commission's experience that on a question of the commission's mandate to proceed into an area of inquiry, where the minister does not agree with the commission's decision on that mandate, First Nations have not been funded to participate.
Senator Austin: What is the funding process in Bill C-6? Is it the same, that the First Nation claimant has to go to the department for its initial research funding, or can it now go to the commission, which will have funds to supply?
Ms. Lickers: The commission that is contemplated under the centre has a funding mandate and First Nations will approach that commission for funding dollars, both for research and participation in the process.
Senator Austin: Does that have any relationship to the cap?
Ms. Lickers: It is not related to the financial cap on the tribunal. There will be prescribed limits for the operating dollars of the centre itself.
Senator Austin: The cost of that research will not be deducted from any award the tribunal might make within the cap?
Ms. Lickers: The legal costs and interest that go toward the final settlement of the tribunal will be borne by the First Nation. That is not the commission's process. The commission is not making determinations that are final and binding.
Senator Sibbeston: I would like to focus on a comment that Ms. Dupuis made in her presentation that dealt with parties impeding the process and erecting barriers. Can you tell us quickly what is the process? I am a lawyer and I know the court process. I have also been on a human rights tribunal and I know that process. Is your process similar, in the sense of it taking some time to get to the commission, but once you are there, you can count on a process that will begin and end on a timetable agreeable to the parties?
Ms. Dupuis: The actual Indian Claims Commission process is a review process, because we operate once a claim has been rejected by the Department of Indian Affairs. The First Nation comes before this commission and makes a request for an investigation on the rejection. Then we conduct an inquiry whereby the First Nation is invited to participate with Canada in defining the issues in this claim. Our counsel sits with the parties' counsel to work out the issues into which a panel of commissioners will inquire. The panel goes into that First Nation community and hears from the First Nation witnesses, be it elders, citizens, younger people or experts. Oral evidence gathered in the community from elders is not subject to cross- examination, while expert evidence is. After the evidentiary record is closed, the next stage is written submissions by the First Nation on the issues, reply from Canada on its position, reply from the First Nation on Canada's answer, and then we conduct an oral session where counsel will make their legal arguments before the panel, followed by deliberations, the writing of a report and a recommendation from the panel to the Minister of Indian Affairs.
Senator Sibbeston: Do you see the process in the bill as a more sophisticated or upgraded process that will eventually be in place? Are you not a small unit, and is not this whole commission and tribunal process being upgraded, better financed and given more capability? Does this Bill provide for an upgraded process that will deal with claims more expeditiously?
Ms. Dupuis: We have argued for an independent, permanent body to deal with specific claims. We think that this Bill presents positive elements, although some elements are more problematic for us. At this point, we could not say that it will be a more efficient process. We cannot give you that answer, but you have to appreciate that as a neutral body, as a royal commission of inquiry, where we hear from Canada and First Nations, we have to be careful to maintain our actual work and our actual state of business with these parties. We have a position of neutrality to maintain.
Senator Stratton: One concern with respect to this bill that has been expressed on many occasions is that there are no time limits for going through the process. How would you reassure us that the process will speed up rather than slow it down, which is the perception?
Mr. Bellegarde: The question of efficiency depends on many variables, including resources, both human and financial, and the availability of an information management system, all the machinery that is required to support the institution that is predicated in this bill. Efficiency will have to be looked at in that context. Our commission is the conclusion of a claims process that is managed through the Specific Claims Policy. It is an appeal mechanism, but also an institution that provides facilitation and mediation services to First Nations and the Crown during the negotiation process.
This bill envisions a commission that is involved from the beginning. If that independence is there from the beginning, if the resource level is there and the quality of the commissioners and the tribunal members is such that they will insist upon efficiency and developing their own operating procedures and policies, then it has the potential to be more efficient than the present claims process. It would be difficult to compare our procedures, given the present commission's unique nature as an appeal mechanism, with those of a commission that has a mandate for assistance with and consideration of claims at the front end of a process.
Senator Stratton: Do you think that it is partly a question of a need for more manpower?
Mr. Bellegarde: Yes. The claims branch has done internal studies that set out the manpower and financial requirements to deal with specific claims, and so have the Assembly of First Nations and the working group of the joint task force. Manpower requirements are an important part of it, just as the financial requirements are. The joint task force had a number of working groups, as did the AFN — I am aware of the working groups there — including one on research and on the staffing requirements of a new, independent claims body. This work has been done. It is part of the machinery of giving life to an institution that has been implemented in legislation. I would think it is a little down the road.
Senator Stratton: How far down the road would you say?
Mr. Bellegarde: If an independent claims tribunal were created by statute, it would take close to one year to 18 months to be operational.
Senator Stratton: In the meantime, First Nations have a choice, the old or the new system?
Mr. Bellegrarde: Until the new system is operational, I would assume that they would have to go with the old system.
Senator Stratton: Those that are already in the process of the old system will be allowed to complete that or given a choice. How will you handle the transition?
Mr. Bellegarde: We are not involved in that transition.
Senator Stratton: I understand that. I would expect a process to be worked out whereby that transition would be as smooth as possible.
Mr. Bellegarde: I would hope so, too.
Senator Stratton: We cannot just hope, we should know.
Ms. Dupuis: As a commission and a unique body involved in this kind of specific claims business for the past 12 years in Canada — there is no similar model in other countries — we are certainly looking forward to cooperating with the department and the government to make this transition as smooth as possible.
It is not a question of resources, powers to compel or funding for First Nations, it is really a combination — and I would refer you to our brief — of more resources and taking a different view of these claims, maybe grouping some of them. Maybe there should be direct access to government files at the outset, so we do not get one set of research done by the First Nation, another by the Department of Indian Affairs and another by the Department of Justice. The parties could come to this commission with an agreement that more research is needed. A combination of different elements could be put in place for greater efficiency.
Senator Stratton: The question of appointments has also been discussed, such that the First Nations have representation on the commission, which I believe is appropriate, especially today. If you were envisaging how this process would work, what would be your criteria for the capability of an individual to serve on a commission? Do you think criteria should be developed, and if so, what should their background be, or is that inappropriate at this time? I think it needs to be discussed, because it is one thing to say that we would like to try to have First Nations people on the commission, which I think is appropriate, but it is also appropriate to ask what the requirements are; how would you respond to that?
Ms. Dupuis: We have said that there was a precedent for consultations with the First Nations before making appointments to this commission. I think in this case, there is no reason why different criteria or different reasoning in developing criteria would operate. Why would we apply a different reasoning to this kind of commission from the reasoning we apply in setting up criteria for the Human Rights Commission? I think that consultation with the First Nations is a critical element, and that we have to take into account — we refer to that in the brief — that this is a process to deal with claims by First Nations based on the way the government has acted in the past. We have to appoint people who represent the society, the First Nations, the government. I think it is actually a settled legal principle that consultation with and participation of First Nations is required.
Senator Austin: I wanted to follow up on the question that Senator Stratton asked. I looked at your annual report to see where the commissioners came from. I think I am right with respect to the commissioners who were in office during the period covered by your 2001-02 report. The only person who came from the department was Chief Commissioner Phil Fontaine. I gather that the practice has been to go outside the federal government in the search for people to serve as commissioners of the Indian Claims Commission.
One submission that we received relates to the question of independence. There was a concern expressed that the department would want to move senior officials into the commission and the tribunal to be established under C-6, and then back into the department. The appearance of impartiality and independence could be spoiled. I take it the practice, with the exception of Chief Commissioner Fontaine, has been not to source the commissioners from the federal service; is that a fair summary of your experience of appointments to the commission?
Ms. Dupuis: In administrative law, when you set up specialized tribunals, you will try to acquire expertise in that specific area. It is not surprising that people who have had past experience with the Department of Indian Affairs or First Nations would be selected. If you read the annual report, Chief Fontaine worked both in aboriginal governments and for the federal government.
Senator Austin: The concern we have is not with Chief Commissioner Fontaine. I think he is eminently qualified. There is the theoretical question of the appearance of independence and impartiality, and of course the substance always goes with the appearance. One of the submissions suggested that it would undermine that appearance if anyone from the commission or the tribunal envisaged in Bill C-6 were to return to the Department of Indian Affairs after serving in that office. I wonder if you have a comment with respect to conflict of interest, independence and impartiality?
I do accept that people in the department will have relevant experience. One suggestion is that if they opt to take an appointment with the commission or tribunal, they should not be allowed to resume their career in the department. It follows that the same should apply to the AFN or any aboriginal claimant; that there should be some bar to them returning to work of that kind. Do you have a comment on that issue?
Ms. Dupuis: My only comment would be that I think we should follow, in this particular area, the same basic rule of ethics and conflict of interest that we apply in other areas of the federal government.
Senator Austin: Could you summarize that ethical code for us?
Ms. Dupuis: I am not a specialist on these specific non-conflict rules. It depends. The government might choose to appoint some people at very little distance from the government — they may have their reasons for that — and they may ask these people not to return to their previous position before the expiration of a certain time period. There is no reason why we should depart from that in this new centre.
Senator Léger: You put an emphasis on social justice and on oral history through the elders, and that brought me to something we heard about often, the delays. I imagine that is why there are so many delays. If you do go to the people, because that is your main preoccupation or one of the goals, I imagine that is why. Does that go beyond the legal aspects, social justice and oral history? I just feel that it is an answer to the delays, which is, in a sense, all right if it is part of your process. That is what you said; the goal was social justice. My question is, when it becomes so legalistic, do we get lost in that?
[Translation]
Ms. Dupuis: When we refer to social justice, we think it is important for Canadian society as a whole to settle specific claims. These claims must be settled in a manner which is fair and just, and which puts an end to litigation, since that is all we have had until now.
It is true that litigation, be it before a court of law or a specialized tribunal, generates delays. The bill seeks to create a process which would help settle these claims. Will it create a process which is more efficient than what we now have? That is what the commission hopes. We have made changes to make the research process more efficient, in other words, First Nations would receive more money to help them build their case. The commission also has the power to compel the parties not to create unreasonable delays. A tribunal may make a final ruling on that matter. In our view, this process will lead to greater social justice.
Senator Léger: I was struck by the research aspect. You said there were four types of research. The government conducts its research and submits it to you. The same research is conducted by another party, and then we move on to a third type of research. All this creates delays.
It is a bit like going to the hospital and telling your story over and over again.
Is all this endless research required by law?
Ms. Dupuis: That is an interesting question. Remember that when these treaties were signed — and they form the basis of many claims —, First Nations were not obliged to demonstrate they had rights, in other words, they did not have to do the research which is being done today.
What is important is to create a more efficient system. Senator Austin asked the question with regard to combining the roles of facilitation and adjudication within a tribunal. This approach lies at the heart of the commission's role: to get the parties to create joint research mechanisms from the outset to avoid the lengthy succession of separate research stages.
[English]
Senator Christensen: Since the process began, approximately 1,100 claims have been advanced. You have approximately 60 claims per year. The figures that I have read show that only 250 of those claims have been completed. The others are in different processes of review. What factor has caused that backlog? The second question is do you see Bill C-6 as being more effective in dealing with that backlog?
Mr. Bellegarde: There is a misconception that the Indian Claims Commission is part of the Department of Indian and Northern Affairs. We do not deal with 60 incoming claims every year. That is not our mandate. As an Order in Council institution, we have an independent mandate separate from the specific claims branch. Our mandate continues at the end of a claims process when a claim is rejected. I do not feel able to answer that particular question. It should be addressed to the specific claims branch.
Senator Forrestall: Does the commission have a repository for the information gathered from research, or is that left to First Nations or whoever may be doing research for a particular purpose?
Ms. Lickers: The Indian Claims Commission, under its mandate, is required to maintain all of the historical records that we gather through the course of our inquiries. At the conclusion of the inquiry and at the termination of this commission, we are required to turn our records over to the Privy Council Office. Until that happens, all of the historical evidence that has been gathered in our 12-year history is housed at our offices at the Indian Claims Commission here in Ottawa.
Senator Forrestall: Is the information that you have accessible to scholars?
Ms. Lickers: Yes, it is. Once we have concluded our inquiry, the documentation that we have compiled in the course of that inquiry is publicly available. We are not subject to the Access to Information Act or the Privacy Act.
Senator Forrestall: Everything is available to the public?
Ms. Lickers: That is right. I should add, except for what has been gathered under solicitor-client privilege in the course of the commission's work.
Senator Forrestall: That is understandable. Have you been giving consideration to a specific recommendation when it comes time to turn over this work? Have you given any thought as to whether you might make a suggestion to the Privy Council and to the government as to what might happen to the files?
Ms. Dupuis: This is certainly one item that we will have to take a look at. We are preparing ourselves to manage a transition period, and this will be one of the questions that we will have to address.
Senator Forrestall: Is there a centre of higher learning, either within the university community or the First Nations, where this information might be placed for protection and to allow public access? Has the information been analyzed?
Mr. Bellegarde: Yes. The information banks that we have now become the property of the federal government once the ICC is decommissioned. I would assume that they would be stored in the National Archives or some other institution. I do know that in some provinces, the representative First Nations institutions have information banks. They have their own research units such as the TARR Centre in Manitoba and the Federation of Saskatchewan Indian Nations, FSIN, in Saskatchewan. There is no storage institution yet. That could be a possibility with the new centre, depending on how the commission and tribunal decide to structure their procedures and policies. There is not one yet, other than the National Archives.
Senator Forrestall: I urge that we hear from counsel on this question. I find it to be of enormous importance, not just from the point of view of the difficulty of having to retrace the steps, but they also have exceptional value.
Ms. Lickers: I would add that the subject area of the commission's work in its 12 years and the research that has been compiled in every corner of this country would be a prime candidate for documentation storage in the new centre. The subject matter of the claims that will be resolved and addressed is similar in nature. We are talking about treaty First Nations living through the agricultural belts in Saskatchewan into Alberta and all of the research that has gone into supporting those claims: Northern Alberta, the introduction of the W.A.C. Bennett Dam and all of the reports that were produced in that inquiry; and the B.C. First Nations' experience with the McKenna-McBride commission and the history of land selection in that province. All of that information that has been compiled through the years will be part of the new process, and I would think other First Nations and legal counsel from both sides would gain great benefit from having that available.
This commission in its 12 years has had the benefit of travelling throughout the country and speaking to the grandchildren and, in some cases, the children of the treaties' signatories and the individuals who were alive at the time that the specific events at issue happened. The commission, through the gathering of oral history, records that information in the form of a transcript. That forms part of a historical report and is a valuable resource that must be shared.
Ms. Dupuis: I think that what has been gathered in terms of evidence and oral history by this commission could be very useful for the new centre in avoiding duplication of research. We have dealt with Treaty 4 claims in Saskatchewan and there are other claims from the same area. There is no reason why the new centre could not take advantage of the research and the evidence that was gathered by this commission, share it with the parties and discuss whether there is a need for further research. Is what has been dealt with by this commission not the equivalent of what we call ``a test case'' that we could apply to other claims coming in? I think there would be a benefit in terms of efficiency.
Senator Forrestall: There is some urgency with respect to the transfer of this body of information and data such that it seems to me it should be coincident with the demise of the present commission and the birth of the new one — not an event that happens five or ten years later after somebody has had an opportunity to hand pick and sort through it. In the wrong hands, it becomes false. It does not benefit justice.
Senator Watt: I have been told that this present commission has the power to conduct inquiries and you seem to be putting a lot of emphasis on the ability to gather the information, to make sure the information is out there, not only in the hands of the commission, but making sure that Aboriginals have sufficient information to prepare their case in the proper fashion; however, this new proposed commission does not have that power? You are taking away the ability to conduct the inquiry.
Ms. Dupuis: I think that you have highlighted some elements of our presentation. The actual commission has nothing to do with the new system. It is a totally different system. We are a review process. We are a commission of inquiry and our mandate gives us mediation, inquiry and investigation powers. In the new centre, the commission would have many powers of facilitation and mediation and different responsibilities. They will be involved at the outset of the claim. They will be the first instance, while we are a review body. We have said that we are concerned about the restrictions imposed on the tribunal by the financial cap.
We have said that there are some positive qualities to the bill, one being the creation of a tribunal that has the power to make a final decision on a claim. We have that said that the alternative dispute resolution mechanism is important. The inclusion of oral history in the proposed legislation is a major element. The recognition and inclusion of the fiduciary obligation as a basis to file a claim is a positive aspect. I would say that the commission had been instrumental in having this principle of fiduciary obligation recognized as a basis for a claim. At the same time, we can see areas of concern in terms of the review process, the principle of independence that we raised.
I agree with you that it is not easy to make a judgment on this Bill, and I would like to repeat what I said earlier, that as a commission of inquiry doing business with and having to interact with First Nations and government in trying to facilitate a fair process, we are not at this point able to indicate more than what we have said before you tonight. We have been quite specific in our brief on the positive aspects as well as on the areas of concern.
The Chairman: Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-6?
Hon. Senators: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chairman: Would honourable senators prefer to take clauses 2 to 40 as a group, or shall we proceed with them one by one?
Senator Stratton: I know we have amendments. I am quite satisfied that we can move through this quickly provided that we stop and focus on areas where there are amendments.
Senator Watt: I have an amendment, and so does Senator Austin.
The Chairman: Have you given copies of your amendments to the clerk?
Senator Watt: It is in both French and English.
The Chairman: You are not entitled to propose amendments, as you are not a member of the committee.
Senator Austin: I would like to say, ``agreed'' to clauses 2 to 40, because I have no amendments to those clauses.
Senator Stratton: There is one amendment, new clause 2.1, where Senator Watt wants to add, ``1995 non-derogation clause.''
The Chairman: We will go through it clause by clause.
Honourable senators, is it your pleasure to adopt clause 2?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Stratton: I have a new clause 2.1, ``1995 non-derogation clause.''
The Chairman: We do not have any copies.
Senator Stratton: Do you want an explanation now?
Senator Watt: There is a definite need to have a non-derogation clause in this bill because it is important and was part of the joint report.
Senator Austin: Are you asking for comments, Chair, at this time?
The Chairman: Yes.
Senator Austin: The purpose of the bill is not to deal with Aboriginal title. In fact, the draft bill expressly excluded it. It is to deal with specific claims that arise out of agreements and other obligations of the Crown. The whole purpose of the bill is to create finality with respect to those claims.
If we put a non-derogation clause in here, we could go through the entire process, the tribunal would make a judgment and then the claimant, in theory, could go to the court saying, ``Well, that is irrelevant because I have an Aboriginal claim under section 35,'' or some other inherent right claim.
The claimants do not have to enter this process. If they think they have section 35 rights, they can pursue them in the courts. We are setting up a special process to bypass the courts where the parties agree to finally decide on the claim before the tribunal.
I do not believe that a non-derogation clause is required or desirable in this particular bill.
The Chairman: Are there any further comments on this amendment?
Senator Christensen: The issue of a non-derogation clause is causing considerable concern in many of the bills we have had before us. We will try to come up with something such as an omnibus bill that will affect not only future bills but also legislation that has already been passed. It is my understanding that the Senate has been asked to come up with an acceptable non-derogation clause that will meet those needs. If in fact it were felt that this particular bill should have one, when that omnibus bill passes, it would be put in at that time.
Senator Watt: I want to respond to the argument made by Senator Austin. That is exactly the reason we need a non- derogation clause. It is because we do not always want things to be referred to the court.
I see it will not go anywhere. I cannot vote. I was supposed to be selected to replace Senator Gill, but the fact is the leadership has changed its mind and picked somebody else. I am not a member of the committee. I cannot have the effect I would have if I were a member of this committee. Therefore, I would like to withdraw the amendment and deal with it on the floor of the Senate.
The Chairman: If you so wish, thank you.
Senators, the motion is still before us. Leave to withdraw it is needed. Do I have leave to withdraw the motion?
Hon. Senators: Agreed.
The Chairman: Is it the wish of the committee to carry clauses 3 to 40?
Hon. Senators: Agreed.
Senator Sibbeston: I want to ask Senator Austin about proposed amendments concerning the appointments and consultation.
Senator Austin: I intend to propose amendments to clauses 47 and 56. Concerning clause 76, I will be proposing new clauses 76.1 and 76.2. In addition, I will be proposing an amendment to clause 76 itself. As well, I will be proposing that there be a new clause 77.1.
The purpose of those amendments is to deal with a legislated requirement for consultation in the case of initial appointments, in the case of appointments following the initial series, and in the case of the three- to five-year review. They deal with independence and conflict of interest provisions. I also propose to deal with the question of the cap.
Just for the information of the committee, and in response to Senator Sibbeston, they are all subsequent to clause 40 of the bill.
Senator Sibbeston: Is there an intention to deal with the initial appointments that the minister might make such that he should consult with First Nations or a representative?
Senator Austin: Yes.
Senator Sibbeston: I thought that would be dealt with earlier in the bill.
Senator Austin: It is dealt with in the amendments I am submitting, Chair.
Senator Stratton: Chair, might I suggest that we approve clause 40 first, before proceeding to any amendments. Otherwise, total confusion will prevail.
The Chairman: Shall clauses 2 through 40 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 41 to 46 carry?
Hon. Senators: Agreed.
The Chairman: There are proposed amendments, Senator Austin.
Senator Austin: With respect to clause 47, I move:
That clause 47 be amended by (a) replacing line 4 on page 22 with the following:
(a) in relation to a specific claim that is before the Commission, to summon witnesses or to order production of documents;
The current (a) would be renumbered (b) and the current (b) would be renumbered (c).
The purpose is to give the tribunal the power to summon witnesses or to order production of documents with respect to a specific claim that is before the commission.
One of the problems brought to us by witnesses is that in the commission process, while it is a facilitation process, there is no power to do more than deal with the processes just as far as the parties want it to go.
It would spoil the commission's role as a facilitator to give it that kind of power directly, but one of the parties to the specific claim, either the Aboriginal claimant or the government, is permitted by clause 47, as it says, ``On application by a party to a specific claim, the Tribunal may, at any time, determine.'' Therefore a party to the claim can ask the tribunal to use the power to summon witnesses or order production of documents to be presented before the commission.
That power was asked for, and I move that that power be added via the words that I have presented. I believe the text is in front of the senators.
The Chairman: Do we need a seconder for that motion? No, we do not need a seconder.
Senator Fraser: This is not on substance; this is purely on language. I do not presume to be an expert on substance. We would then be amending the clause to read, ``On application by a party to a specific claim, the Tribunal may, at any time, determine to summon witnesses.'' Is that the appropriate legal phrase, ``determine to summon witnesses''?
Senator Austin: Yes, i.e., make a decision to.
The Chairman: Any other comments on this?
Senator Austin: Old (a) becomes new (b) and old (b) becomes new (c).
Senator Christensen: Do you then have a (d) in there?
Senator Austin: There is no (d).
The Chairman: If there is no further discussion on the amendment, I will pose the question. Is it agreed that clause 47 be adopted as amended?
Hon. Senators: Agreed.
Senator Austin: My next one is 56, but we have to do clauses 48 to 55.
The Chairman: Clauses 48 to 55.
Hon. Senators: Agreed.
The Chairman: Is everyone agreed? Senator Stratton?
Senator Stratton: Yes. If I do not answer, it is a ``yes.''
You will hear from me otherwise.
The Chairman: No doubt. It is agreed then.
Senator Austin: With respect to clause 56, Madam Chairman, I would like to amend one word in the first line, on page 24, and I move:
That Bill C-6, in clause 56, be amended by replacing line 1 on page 24 with the following:
maximum of ten million dollars...
The change is from the number ``seven'' to the number ``ten.''
Senator Stratton: If I may, I would like a brief explanation. I see attached background information that we have received on the House of Commons Procedure and Practice, from Robert Marleau and Camille Montpetit. Perhaps the senator could tell us the ramifications of us changing a dollar value in a document?
Senator Austin: There is no problem in this case because the Senate has full power to amend, provided it does not increase an appropriation, which this does not, or the amount of a tax, which this is not. We are simply raising the level of a claim entitlement. We are not, in any way, charging the crown with an additional financial burden.
Senator Christensen: How does that affect the number of claims that can now be looked at?
Senator Austin: It depends on what the Crown decides to put in by way of a financial allocation. We have heard from the minister that they have an idea of what they will provide annually. If it stayed constant and it was $7 million, and let us say the number was 70, they could deal with 10 claims up to $7 million. If we make it $10 million, they may only deal with 7 claims up to 10 million.
Senator Christensen: Now, at $10 million, how many more claims will become eligible to go through this process?
Senator Austin: I have submitted a page to you that indicates that historically, 82 per cent of claims in the period April 1, 1970, to March 31, 2003, were settled for less than $10 million; 195, or 78 per cent, were settled for less than $7 million. In effect, four per cent more of the claims are eligible for settlement under the new cap.
Senator Christensen: It is a modest amount.
Senator Austin: I am not claiming this is a startling amendment, but at least it is an attempt on our part to establish a principle. We are trying to respond to what we see as a need, and I hope that the minister will accept our intention to provide some additional accommodation to claimants here.
Senator Chaput: We are talking of federal dollars here, are we?
Senator Austin: Yes.
Senator Christensen: This is federal dollars and does not include the total with provincial dollars added in. It would be $10 million federal and $10 million provincial if in fact provincial dollars were included.
Senator Austin: I will take a moment so that the answer is totally accurate.
Colleagues, I am now able to answer this very good question. If the province decides to join the tribunal process, then the claimant has to accept that the total claim against the federal government and the province is capped. Therefore, the claimant may not want to go to the tribunal if that is the result, but in any event, if the province accedes to the jurisdiction of the tribunal, then the total claim against the federal and provincial governments is limited to the cap, whatever it is.
Senator Christensen: Ten million, five and five.
Senator Austin: I might add that it is a justification for our increasing the cap a little.
The Chairman: Are there any further questions regarding clause 56, line 1? If there is no other discussion, I will pose the question.
Hon. Senators: Agreed.
The Chairman: We have adopted the amendment. Now we must adopt the entire clause as amended.
Hon. Senators: Agreed.
The Chairman: It is agreed.
Now, clauses 57 to 75.
Hon. Senators: Agreed.
The Chairman: There is an amendment expected to clause 76, as well as two new clauses.
Senator Austin: Honourable senators should be aware that there are two ways to go. I will propose one and then discuss the other. I will propose that Bill C-6 be amended by adding after line 32 on page 29, the following clause. It would be a new clause 76.1 so it would come after the present 76(1), (2) and (3).
The Chairman: I have been advised, Senator Austin, you should first deal with the amendment ``replacing line 19 on page 29 with the following''; or we could postpone clause 76 and come back to it.
Senator Austin: Perhaps we should do that.
The Chairman: Is everyone agreed?
Hon. Senators: Agreed.
Senator Austin: I would like to introduce a new clause 76.1:
The Minister shall, before making a recommendation under section 5 or subsection 20(1) or 41(1), notify claimants — which notification may be made by ordinary mail sent to their latest known addresses —
Senator Stratton: That is ``(b)'' on your document?
Senator Austin: It is ``(b).'' Let me start again.
76.1 The Minister shall, before making a recommendation under section 5 or subsection 20(1) or 41(1), notify claimants — which notification may be made by ordinary mail sent to their latest known addresses — that they may, during a period that the Minister specifies of not less than 30 days after the date of the notice, make representations in respect of appointments to the office or offices in question.
As a comment, the ``(a),'' the other option, was to add at the end of line 19, 76.1, where it says, ``considers appropriate'':
In carrying out the review, the Minister shall give to First Nations an opportunity to make representations.
The difference here is that the minister would, under the clause 76 amendment, have a statutory responsibility to give to First Nations — that is different from claimants, I want to point out — an opportunity to make representations. There is no structure as to the time frame or how many First Nations; is it two, or five, or whatever he decides? There is no containment of the category.
To deal with those issues, I am suggesting there should be no amendment to 76 and that we put in a new clause 76.1 that refers to ``claimants.''
I will go on, colleagues, to the next paragraph. There must be a definition of ``claimant,'' so if you turn over two pages, you will see 77.1, which is entitled ``Transitional Provision,'' et cetera. 77.1 reads:
During the period of one year after the coming into force of section 76.1, the reference in that section to ``claimants'' shall be read as a reference to ``claimants under this Act or under the Specific Claims Policy of the Government of Canada.''
The category, one year after this statute comes into force, includes all the claimants who are now before the Indian Claims Commission, plus those who applied in the first year. Those are the people using the process, and therefore I would argue that those are the people who should be consulted. Therefore, I prefer 76.1, but I did want to explain the other provision. I do want to say that there is nothing preventing members of the AFN from using the AFN to coordinate their representations. It is not being made part of the statute, but I would fully expect that that is what would happen.
I am moving that committee approve an amendment, a new clause 76.1, after which, I will move to approve 77.1.
The Chairman: Does the committee understand?
Senator Sibbeston: Chairman, I would like to ask a question of the person making these amendments. When we talked about consultation, we talked specifically about a minister consulting with the Assembly of First Nations. In this case, the amendments provide for the minister to consult with First Nations. I am wondering why this difference. Why not a provision that would have the minister consult with the AFN rather than First Nations?
Senator Austin: I tried in part to answer this question. First, all the claimants may not be members of the AFN. Claimants are defined as ``Aboriginal bands,'' and the AFN is not fully representative of the Aboriginal community, or of all of those who are entitled to make claims.
Second, as I understand the policy, legislative reference to a private organization is difficult. We do have legislative reference to boards set up by legislation or by Orders in Council of various kinds, public boards, but the AFN does not fit that category.
As I said, in functional terms, there is no reason why its members could not use the AFN to coordinate and make a set of recommendations.
Senator Sibbeston: In taking this approach, of referring to ``claimants,'' would you say it provides special recognition to the claimants as being entitled to have a say in who would be the adjudicators?
Senator Austin: In my view, that is the more important constituency to consult.
These are the people who will be directly affected by the decision. The general clause that I am not moving is: ``In carrying out the review, the Minister shall give to First Nations an opportunity to make representations.'' That is wide open and so incapable of defining the obligation of the minister that you would not know what an appropriate consultation would be. Whereas with the clause I am submitting, you do have a context. I also believe that claimants will not, in most cases, fail to respond because they know what their interest is in the process.
Senator Stratton: I will refer back to my earlier statements on this. I firmly believe that if you were to establish this process, it should be like our government's proposal on Meech Lake, such that each province could submit a list, I believe of five names, for a senatorial position and the Prime Minister would choose from that list. I believe a process should be worked out to address that, or it should at least be similar to Bill C-4, the Wheat Board modifications brought forward by Minister Goodale, whereby a certain number of Wheat Board appointments were made by election from the farm groups. I believe this process should be handled in the same way. It should not be solely up to the minister. A certain number of appointees should come from the Aboriginal or First Nations groups. When we vote on this, you will hear ``on division'' from me.
Senator Austin: I have to amend what I said because I just received a note. I have so many different drafts of different items and amendments that I am confused. Let us go back to clause 76. I forgot that I have been advocating that in the three-year to five-year review, the minister consult, and that is what I want to submit — with my apologies. If I may, I would like to withdraw the motion with respect to 76.1 for the moment.
The Chairman: Yes, that motion is considered suspended.
Senator Austin: I would like to move that, in clause 76, at line 19 on page 29, ``considers appropriate,'' we add the words, ``In carrying out the review, the Minister shall give to First Nations an opportunity to make representations.''
That is fine, because the review deals with the entire policy of the act and the practices.
Senator Watt: I want to ensure that we are talking about consultation. I do not believe that Senator Austin is talking about a proper consultation.
The Chairman: We are talking about clause 76(1), in respect of the three-to five-year review.
Senator Austin: That is clause 76(1).
The Chairman: It is the three-to five-year review.
Senator Austin: The consultation applies to the three-to five-year review. I merely got ahead of myself.
Senator Watt: You are not dealing with the consultation.
Senator Austin: I am dealing with the consultation relating to the three-to five-year review. I am proposing an amendment such that ``the Minister shall give the First Nations an opportunity to make representations.''
Senator Watt: An ``opportunity'' does not necessarily mean that there will be a consultation. The onus would be on the claimant.
Senator Austin: In plain language, it means that the minister shall — meaning ``mandatory obligation'' in law — give First Nations an opportunity to make representations. I do not think —
Senator Watt: What is the definition of ``opportunity''?
Senator Austin: It is such that they do not have to respond. The minister has to give them notice that he is undertaking a review and I would presume that the opportunity to make representations has to be with respect to a review of this proposed legislation, how it has worked and what they would like to say about how effective it has been.
Senator Stratton: Again, with respect to this amendment, I will be on division because I disagree with the wording. I do not think it should be ``opportunity.'' Rather, it should be mandatory that First Nations and Aboriginals have true input.
Senator Sibbeston: Again, when there is a reference to ``First Nations'' in the review, will ``First Nations'' be defined as ``claimants''?
Senator Austin: Not on the three-to five-year review because it affects everyone in the community. I would ask that you call the —
Senator Christensen: I am looking at alternatives. ``In carrying out the review, the Minister shall give to First Nations...'' Could that be ``shall require First Nations,'' but then, I am looking at different wording.
Senator Austin: The simplest strong language is ``shall give.''
The Chairman: Are we ready for the question on clause 76(1)?
Senator Stratton: This is the three-to five-year review.
The Chairman: It is moved:
That Bill C-6, clause 76(1) be amended by replacing line 19 on page 29 with the following:
considers appropriate. In carrying out the review, the Minister shall give to First Nations an opportunity to make representations.
That is in respect of the three-to five-year review. Is it agreed?
Some Hon. Senators: Agreed.
The Chairman: On division.
Shall clause 76 carry as amended?
Some Hon. Senators: Agreed.
The Chairman: On division.
Senator Austin: I will revert to my proposed amendment, 76.1, which reads: ``The Minister shall, before making a recommendation under section 5 or subsection 20(1) or 41(1), notify claimants — which notification may be by ordinary mail sent to their latest known addresses — that they may during a period that the Minister specifies of not less than 30 days after the date of the notice, make representation in respect of appointments to the office or offices in question.''
The Chairman: Are there comments or a rationale? Is the motion agreed to, honourable senators?
Some Hon. Senators: Agreed.
The Chairman: On division.
The Chairman: The next one is clause 77.
Senator Austin: I do have amendments for a new clause 76.2, but I would suggest that logically, if not in terms of the chronology of the bill, we do 77.1 first and then go back and deal with 76.2. The logic is that I would like to define ``claimants,'' because we have agreed to the word. If I understand correctly, my suggested procedure would be acceptable.
The meaning of ``claimant'' at clause 77 —
The Chairman: One moment, senator. The clerk has suggested that we deal with clause 77 first and then with new clause 77.1.
Some Hon. Senators: Agreed.
Senator Stratton: On division.
The Chairman: Where is clause 77?
Senator Austin: It is the last clause of the bill on page 29.
The Chairman: Is clause 77 agreed to?
Some Hon. Senators: Agreed.
Senator Stratton: On division
The Chairman: Agreed to on division.
Senator Austin: I move clause 77.1:
During the period of one year after the coming into force of section 76.1, the reference in that section to ``claimants'' shall be read as a reference to ``claimants under this Act or under the Specific Claims Policy of the Government of Canada.''
I have explained it.
Is that agreed?
Some Hon. Senators: Agreed.
Senator Stratton: On division.
The Chairman: Agreed to on division.
Senator Austin: May I propose a new clause 76.2. The document is before colleagues.
This is designed to deal with the question of avoidance of conflicting conduct. Honourable senators will have heard some questions from me to the witnesses from the Indian Claims Commission.
The clause reads as follows:
76.1 (1) At no time shall a person who is appointed under section 5 or subsection 20(1) or 41(1) act for any party in connection with any specific claim in relation to which they performed any work or concerning which they obtained significant information during their term in office.
Subsection 2 is entitled ``One year non-employment period.''
Persons who were appointed under section 5 or subsection 20(1) or 41(1) shall not, within a period of one year after the end of their term in office, accept any employment with or enter into a contract for services with the Department of Indian Affairs and Northern Development or a first nation that had a pending specific claim — before the Commission or the Tribunal, in the case of the Chief Executive Officer, or, in the case of a commissioner or adjudicator, before the Division of the Centre to which the person was appointed — at any time during their term in office.
Senator Fraser: Appointments are renewable. Does ``term in office'' refer to the most recent term or to the entire period?
Senator Austin: I would interpret it that the continuation of service is their term in office. I think it is well drafted in the sense that it is specific to the conflict. It is not saying because you were a member of a tribunal or an adjudicator or a commissioner something you never heard of also bars you. It is a desire to reinforce the independence of the tribunal and make it clear that it is not a creature of the department or of any First Nation.
The Chairman: I have some concerns about this. As was discussed earlier, are we not giving our well-educated Aboriginal people a cross to bear because they cannot enter into any contracts with the Department of Indian Affairs, their own band councils or any other First Nations? Where would they find a job for the one-year after?
Senator Austin: They are only barred from working for that particular claimant. Presumably there is a lot of other work in the field.
Senator Christensen: Not necessarily. If you are living in a small community in Northern Manitoba or Ontario, you do not have any other alternatives.
Senator Pearson: We are not talking about many people.
Senator Austin: The commissioner, the adjudicator or the chief executive officer. We are talking about 11 people. It is pointed out in the appended note, under paragraph 3, ``Consequences,'' that while First Nations may see this as a positive step in guaranteeing the independence of the centre by removing the potential for conflict of interest by government appointees following the conclusion of their tenure at the centre, the inclusion of these provisions may mean that certain candidates may refuse to accept an appointment because they want to remain involved in the area of specific claims, either with the department or a claimant First Nation.
There is no way, however, to apply the avoidance of conflicting conduct only to employees of DIAND. It has to apply in parallel to be fair and equitable.
The Chairman: We understand that, but any employee from DIAND could go to PCO, Department of Justice or wherever, while the Aboriginal experts do not have that opportunity. My concern is that it is not a level playing field.
Senator Austin: They cannot work for a claimant, but they could work for the AFN, the Federation of Saskatchewan Indian Nations or any number of entities within the Aboriginal community. They just cannot work on that particular area for one year. There is little doubt in my mind that anyone with that competence will find many things to do. You could even run to head the AFN, and it would not be a conflict.
Senator Watt: I have difficulty understanding the proposal that Senator Austin is making. Why are we dealing with civil servants?
Senator Austin: Because the AFN made a submission saying individuals from DIAND who became commissioners of the tribunal could go right back to work in the department, and that would impair the credibility of the centre. Upon hearing this evidence, we all said that we should not allow that to happen.
When the drafting took place, it was asked why only employees of DIAND. Other people will have conflicts. Those acting for claimants will have conflicts as well. They will learn things during the process that they can use to further their employment. They can say that people should hire them, as they know a lot about their problems.
The desire is to prevent that kind of thing from happening, which if it did, would impair the reputation of the tribunal for impartiality.
Senator Watt: Why do we not approach it directly rather than indirectly and say that functionaries cannot be appointed or hired by the government?
Senator Austin: Or by the claimant.
Senator Watt: Or anyone else for that matter.
Senator Austin: A band could hire someone who had just stepped down as chief executive officer. It is like a judge being hired to argue cases before the same court of which he was a member. There is a convention against that happening. This is new and there is no convention.
I was willing to accept the argument that something should be done to protect the credibility of the tribunal. If it does not work out, if there is a hardship case, it can be dealt with in the review. I cannot say there will be no hardship case. It could happen.
Senator Fraser: I just wanted to bolster, side with, that particular argument. Clauses of this nature are not unusual where regulatory bodies of any kind are concerned. They are not universal. I rather wish they were, because they increase the faith of everyone — the claimants, the people arguing against the claimants, the public at large — that the decisions will be made absolutely impartially without any hint of self-interest on the part of the decision makers. I think that is good. It will help the claimants and First Nations in general.
Senator Stratton: I can accept that for Southern Canada. As Senator Christensen has pointed out, we are not dealing with something that is normal or universal across Southern Canada. We are talking about remote, isolated communities where an individual would go back and try to find employment. This is a first. It should be taken into consideration when we look at this. When I vote, I will request that it be on division.
Senator Sibbeston: I think it is worth noting that this applies if a person is a commissioner who dealt with a specific claim from a certain area of the country. This just says he cannot gain employment with that claimant from then on. He can get a job anywhere else in the country with other First Nations. It is specific to the claimant that is before the board. It is true; it is like a judge leaving the bench and working for one of the parties that was before him. We cannot allow that. In that regard, it makes sense.
Senator Christensen: You are not dismissed from a board each time you hear a case. The person is appointed for a period of time, four or five years. He will hear a number of cases in that time.
The Chairman: We are dealing with a chief executive officer, the commissioners and the adjudicators, to a total of 11 positions. It is not the researchers or anything like that. It is just those 11 positions.
Senator Austin: It is those who are appointed under section 5 or subsections 20(1) or 41(1).
Senator Sibbeston: I would be interested to hear from Senator Austin his comments with respect to regular civil servants who could likely move from the Department of Indian Affairs to work for the centre. I know there are provisions in here to cover that, but I do not believe there are any similar restrictions.
Senator Austin: You are right. Researchers, payments officers, administrators, translators and so on are not affected by this in any way. It refers to authoritative positions such as the chief executive officer, the commissioners or the adjudicators.
Senator Sibbeston: I think the concern here is with civil servants from, let us say, the Department of Indian Affairs who have spent a lifetime, as it were, dealing with claims moving into this new centre as an employee. I do not know whether anybody could ever be tainted after working for that department, but that is the idea of not allowing career civil servants who may even have blocked claims becoming significant people in the centre.
Senator Austin: That does not block the minister from appointing people who have been involved in the claims process in the department. It says that they do not go back there; that is it. They have made a step. They cannot go back for at least one year after they leave the centre. It is perfectly possible to choose someone from within the department who has been supporting the processes of the Indian Claims Commission from a departmental point of view and has a history of experience. The minister might decide to appoint such a person. Undoubtedly that person could bring a lot of experience. The minister would have to judge whether the said person was bringing a negative or a positive bias to the position. Either would be possible, but not probably both at the same time.
Senator Pearson: Now we have to consult others, too, with these amendments.
Senator Austin: It may be that the minister, in making a decision — and I am speculating wildly — would ask whether the person would have a bias one way or another. Let us get a balance of biases and that may produce a balanced result.
The Chairman: Is everyone ready for the question? Shall we adopt the motion to add subsections 76.2(1) and (2)?
Some Hon. Senators: Agreed.
Senator Stratton: On division.
The Chairman: Carried, on division.
Shall clauses 78 to 85 carry? Shall all the last ones carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the schedules carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried. Is it agreed that this bill be adopted with amendments?
Some Hon. Senators: Agreed.
The Chairman: The committee is looking at making some observations. Would you like to proceed in camera to discuss them?
Senator Sibbeston: Is there a particular purpose in going in camera or can it be dealt with in public?
The Chairman: It is the committee's choice.
Senator Stratton: I think we should stay public.
The Chairman: Copies of the draft observations have been distributed. I would like at this time to thank Senator Sibbeston's office for drafting the observations for discussion.
Senator Sibbeston: Before the members launch into reading the observations, I would ask that number 2, ``Definition of claim,'' be deleted because I am satisfied that the issue that I outlined here is covered in the bill. The observations would just be 1 and 3, and 3 would then become 2. There are just two observations then; one deals with waiver requirements for rulings of validity and the other one with delay.
The Chairman: We will turn now to observation number 1.
The committee frequently heard, both from First Nations and neutral observers, that the requirement for claimants to waive their rights to compensation above the specified cap (as set out in Section 30) in order to obtain a Tribunal ruling on the validity of their claim was the single most significant flaw with the Bill. The government expressed concern that removing this requirement would pose undue and unpredictable financial risk and might imbalance the overall operations of the Commission and the Tribunal. Given the safeguards built into the legislation (Section 71), this seems to reflect an excessive concern with risk aversion. We are concerned that the financial cap on validity will create two categories of claims within the system and could create a significant impediment to the settlement of larger claims. However, we recognize that, in its early years, the Centre may need to operate under conservative principles and that an incremental approach to this issue might be most appropriate. Therefore, the committee did not amend the Bill with respect to this provision.
We would ask that the Minister in the review of the Act in three to five years, pay particular attention to the impact on the cap on validity. The effects on larger claims, the increase or decrease in the number of First Nations choosing to utilize the courts and the frequency of the use of the Tribunal when claims are rejected for negotiation are all areas of interest.
Senator Sibbeston: I would ask that we make a little correction. In the third line, where it refers to section 30, it is actually section 32.
The Chairman: Are there any comments or discussion on this observation?
Senator Austin: I think this is an excellent observation and I certainly endorse it.
Senator Watt: I want to make a comment here. I believe all of us were here and heard a number of the presenters highlighting the fact that they did not want this bill to go through. How come we are not mentioning what we heard from the witnesses? I would think that it should be put into the observations. Why are we not doing that?
The Chairman: It is on the record and we will be looking at it in the report stage.
Senator Watt: It will be viewed by those outside as disregarding what we heard from the witnesses.
Senator Sibbeston: The reason I focused on this issue is that it was presented to us. We heard often in the presentations about removing the waiver so that claimants can have their cases heard based on their validity. Rather than make amendments — in our meeting with Mr. Nault, he indicated the government would not support such an amendment — and become frustrated and have the bill returned to us, or have the government simply reject the bill with such an amendment, we decided to make an observation that would focus the government's attention on this issue, particularly in the three to five years when they have a chance to review the matter. It is a very important issue.
We just chose two issues that seemed to be important — were seen by witnesses as important and I felt were very important — and where calling attention to them would serve some purpose, but without amendments. That is the reason. It was done with a view to saying to the witnesses that appeared before us that we understand, we have given importance to what you said and put it in the observations for the government and the department to look at seriously.
Senator Watt: In my opinion, the witnesses made it absolutely clear they wanted us to reject this bill. It was a small number of presenters who said if it goes through, those are the possible amendments at which we should look. That is what I heard from the witnesses. The majority basically told us to reject it. If we do not put that in the observations, are we saying that we are not listening to them?
Senator Sibbeston: I do not believe we are obliged to make observations on everything we heard. We decide what is important to us. I would say if the member feels strongly about it, he would be free to add to the observations and do what he thinks is necessary.
Senator Watt: Who is that?
Senator Sibbeston: You.
Senator Watt: Are you saying I have a chance to make some modifications?
The Chairman: No.
Senator Stratton: I would like to go on record as saying if you put in an observation because it was stated by so many of the witnesses, how is the argument with respect to the rejection of the bill different? We heard from so many witnesses saying, ``Reject the bill.'' I do not see how you can include one and not the other.
The Chairman: I would like to thank Senator Sibbeston for having the courage to make observations and write them down. If you were interested and concerned, we would have accepted your observations also.
Senator Fraser: Although I was not present, I would be willing to believe anything any longstanding member of this committee tells me witnesses said. The fact is, however, that this committee has just approved the bill. In my experience in other committees, observations are generally designed to elicit specific government action. It is quite clear that we have approved this bill. It will not be rejected. However, these are quite important points upon which the committee wishes to urge government action.
I suggest that those of you who have been here all the way through this might be diluting the impact of these very constructive observations if you load in a whole lot of other material.
Senator Austin: If I could reinforce Senator Fraser's point, this is a strong observation coming from the committee. We have concluded from all the evidence we heard that this is something to which the minister and the department have to pay attention. It is also something that this committee, three to five years from now, will recall and ask, ``Minister, are you paying attention to this recommendation?'' It is ours. I think Senator Watt's point is made more strongly with this draft than by diluting it.
Senator Watt: I do not think I am trying to dilute what we have heard from the witnesses. I heard the same things that every one of you heard. You heard exactly what they said. This is far from representing what I heard from the witnesses.
Senator Sibbeston: Please understand what these observations are. They are my observations that I am suggesting the committee adopt. We are not bound by witnesses, the evidence and the statements given. In the end, we consider what they say, and we as legislators make up our own minds on what we do: Whether we support the bill or amend it or make observations. That is the process. There is nothing magical or sacred about what witnesses say. We accept some evidence and reject some. The fact that they made certain statements does not in itself oblige us to comply with what they say. In the end, it is we who make the decisions to amend or, in this case, just to make observations.
Senator Léger: I feel the emphasis here, to review in three to five years, is the strong point, paying particular attention to the impact on the cap on validity. In three years, do we not have the right to change it? Is that what we are asking here? No?
Senator Austin: We do not have a right to change it. We have a right to go to the minister and say, ``You have a problem.'' We are not members of the executive; we are legislators.
Senator Léger: You are saying that is what you want: The impact on the cap on the validity.
Senator Austin: We want the government to pay attention to this issue because it is an important one.
May I move that we approve the paragraph?
The Chairman: Senator Austin moves paragraph 1. All in favour?
Some Hon. Senators: Agreed.
Senator Stratton: On division.
Before we go to the issue of delay, I would like to go back to the definition of ``claim'' that Senator Sibbeston put forward and has withdrawn. I would like that definition read into the record and to hear an explanation thereafter from Senator Sibbeston as to why that has been withdrawn.
The Chairman: The definition of claim in the Bill appears to be narrower than that currently allowed under the Specific Claims Policy or which might be allowed based on evolving case law. Specifically claims based on treaty rights other than to land or assets, claims arising from unilateral undertakings of the crown, and certain pre-Confederation claims could all be excluded from the Centre's work. We have been told that this could eliminate many of the claims currently in the system or that First Nations have been preparing. Canada should be prepared to meet all of its legitimate fiduciary obligations and we are concerned the definition of claim in the Bill may prevent a number of otherwise valid claims from being pursued. The government has indicated that it wishes to focus on land and asset claims only. We would ask the Minister of Indian Affairs and Northern Development to provide information to the committee at his earliest convenience on how he plans to address other types of legitimate claims if not through the Centre.
Senator Sibbeston, do you wish to respond?
Senator Sibbeston: Since writing this, after discussion of the issues with a Department of Justice lawyer this afternoon, I was persuaded that the issue is covered in the bill already and that I need not write what I have. The concern I expressed there has been taken care of in the provisions of the bill.
Senator Stratton: Do we know which clauses?
Senator Sibbeston: It is contained in 26, (1) to (3), and on the next page, in 26(4), (5) and (6). It is the issue of unilateral and pre-Confederation treaties and agreements. After careful review of those proposed sections, I am satisfied that the bill has covered the issue sufficiently well.
The Chairman: Is there any further comment on 2, the ``Definition of claim''? Is it agreed that it be deleted?
Senator Stratton: Agreed.
Senator Christensen: We are only approving observations. We cannot delete it. It has never been submitted.
The Chairman: Number 3 is ``Delay'':
One of the primary goals of this Bill is to provide for more speedy resolution of claims. Nonetheless, there are many areas of potential delay built into the process. Most notably, there is no requirement on the Minister to make a decision on whether to accept a claim for negotiation within a set time period. We have been told that this flexibility is necessary because of the complexity of many claims and the limited legal and other resources available to the Minister to make these determinations. As well, the government may be limited in the number of claims it can address because of the budget available for settlements. We would therefore urge the government to allocate significant additional resources to the process of validity determination, negotiation and settlement of claims so that the admirable goals of the Bill can be met.
Are there any comments?
Senator Austin: I am very happy with that observation as well.
Senator Stratton: For the record, I have talked about this issue before. There is no time frame other than the required initial six-month response. My fear, like all our fears expressed around the table, is that because there is no time frame for any particular stage after that initial six months, these things, if sufficiently complex, will drag out endlessly. I do not believe that is the way to approach this. When I vote, it will be on division.
Senator Christensen: Would it be prudent to add the same type of paragraph as you have in the first one, that the three-year review be used to see whether it is working or should be changed?
Senator Austin: If Senator Sibbeston agreed, we could add a paragraph that would say we would ask the minister, in the review of the act in three to five years, to pay particular attention to the issue of delay and the resources that have been allocated to the process of validity determination. Senator Sibbeston agrees.
Senator Sibbeston: Yes, I do.
Senator Austin: So moved.
The Chairman: So moved. Is everyone in agreement with the observation?
Hon. Senators: Agreed.
The Chairman: Is it agreed that I report the bill as amended with observations?
Hon. Senators: Agreed.
The Chairman: We are done. I thank everyone for listening so attentively. I especially thank the Assembly of First Nations for their input and all the hard work they did. We have done our best. I know it is not ideal. I think we hit a fair ball, and that is about it.
Thank you, Senator Austin, the sponsor of this. Without your assistance, we would not have gotten this far.
The committee adjourned.