Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 20 - Evidence
OTTAWA, Tuesday, September 30, 2003
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-6, to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts, met this day at 9 a.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, as you know, in the spring we conducted an extensive study on Bill C-6. Since that time, the Supreme Court of Canada has handed down a ruling in Regina v. Powley, a decision of great importance to the Metis people of Canada. In light of this decision, the Senate has referred the bill back to the committee with an instruction that we examine the impact of this decision on Bill C-6.
It is important to remember that it is only this issue that the Senate has asked us to examine. We must therefore focus our discussion on the issues raised in Regina v. Powley and how they impact on Bill C-6.
While I recognize there continue to be disputes among some members with respect to the broader issues raised in the legislation, the motion adopted by the Senate is clear: that the bill, as amended, be not now read a third time but that it be referred back to the Standing Senate Committee on Aboriginal Peoples for the purpose of studying the impact on Bill C-6 of the recent Supreme Court decision, recognizing the Metis people as a distinct Aboriginal nation. It is that question and that question alone with which we are seized.
With that, I welcome our first witness, Mr. MacDonald.
Mr. Allan MacDonald, Director, Federal Interlocutor for Metis and Non-status Indians: Madam Chair and honourable senators, when I got the request to come here and speak to you about Powley, there was a little bit of reticence to begin with. I talked to the clerk of your committee about that simply because the Powley decision is very fresh in everyone's mind. The federal government needs to take the time to analyze the decision, as do provincial governments and Metis groups as well. At this point no one is really prepared to say what the decision means. No one can say what it means until further analysis has taken place.
Having said that, as you mentioned in your opening remarks, the Powley decision handed down by the Supreme Court just 11 days ago is a pretty significant decision. For the first time, the court has affirmed that a Metis collectivity, in Sault Ste. Marie, has a Metis Aboriginal right to hunt. The immediate implications of that decision certainly are confined to the Sault Ste. Marie collectivity in Northern Ontario and the Aboriginal right to hunt, but what the court had to determine in order to make that decision was to set out a test for Metis Aboriginal rights. Of course other Metis collectivities across the country asserting other practices as Aboriginal rights would also be able to use this test to see if there are implications for the Supreme Court of Canada decision beyond Ontario. It is our assessment that there will likely be implications beyond Ontario and the Sault Ste. Marie community.
With that I would say it is a very significant decision. At this point the most immediate impact is on the provinces. Most of the hunting that will be taking place, if there is hunting, will of course be on provincial Crown lands. As we know, provinces have the legislative authority to regulate in that particular area. Nevertheless, there are some immediate implications for the government. Before we can pronounce on any longer term implications there is a fairly significant amount of analysis and study, working with Metis organizations and provinces, to assess what the real implications will be in the longer term.
Minister Ralph Goodale in his role as federal interlocutor is the chief spokesperson for Canada on the Powley decision. He has spoken with Metis leaders and we have spoken with provinces, and right now we are all in the state of trying to work together cooperatively so that we can implement the court's decision in good faith.
Senator Austin: Mr. MacDonald, thank you for your appearance here this morning on short notice. Are you familiar with Bill C-6?
Mr. MacDonald: I am somewhat familiar with Bill C-6. I am not an expert on the file. I will rely on my colleagues from Indian Affairs to speak to that but I have a sense of what specific claims policy is about.
Senator Austin: Would you agree that Bill C-6 is based on the claims of established status Indian bands for redress flowing from treaties and legal agreements with the Crown?
Mr. MacDonald: Again, I would have to rely on my colleagues from the Department of Indian Affairs, but that is my understanding as well, yes.
Senator Austin: Is there anything in the Powley decision that has anything to do with legal agreements and treaties with the Crown?
Mr. MacDonald: In my view, no. What the Supreme Court has decided in the Powley decision is that Metis as a collectivity have Aboriginal rights. The specific claims policy in Bill C-6 does not deal with Aboriginal rights, whether it is Metis Aboriginal rights, Indian Aboriginal rights or Inuit Aboriginal rights. It deals with specific claims or grievances against the federal government for First Nations, so there is nothing specific in the Powley decision that has an impact on Bill C-6.
Senator Carney: I have not read the Supreme Court decision. Could you tell me whether it defines the term "Metis"? A question we often ask witnesses who have come before us is what is their definition of Metis, and we get either silence or a variety of answers.
How does the Supreme Court deal with this issue of definition of Metis?
Mr. MacDonald: The Supreme Court does not define specifically who is a Metis person. It gives some guidance. The court says, for instance, that it is not just anyone of mixed Aboriginal, European-blood ancestry. It lays out guidance as to how a Metis collectivity might determine membership, but it does not specifically say who is a Metis. They actually shy away a bit from that question.
Senator Carney: Could you supply us with what they do say? That would be useful for the committee.
Where do we go from here? If the Supreme Court did not give much guidance in this area, where does the committee go with this? What guidance can you give us?
I would imagine that we do not have too much guidance on what exactly we should do with legislation that is in committee. We do not have amendments before us, nor do we have any suggested amendments of which I am aware.
Where do we go in your view? Since the committee is in the hands of the chair, what advice would you have for us in terms of proceeding?
Mr. MacDonald: The Supreme Court has said there are three criteria to look at when determining membership or who might be a Metis. The first is that the claimant must self-identify as being a member of a Metis community. The second criterion is that the claimant must present evidence of an ancestral connection to an historic Metis community. The third criterion is that the claimant must demonstrate that he or she is accepted by the modern community, which has the continuity with the historic community.
These are guidelines put out by the Supreme Court, but they do not really say, "This is what a Metis is." It is some guidance at which people can look.
Senator Carney: As a supplementary question to this, I came from Vancouver last night with a Canadian Aboriginal whose family is well known to me. We happened to discuss the fact that in B.C. the term Metis is not used particularly in the Canadian Aboriginal community. It is a Prairie word, an Alberta word, a Northwest Territories word, but it is not really used much in British Columbia. We were asking ourselves why, and I was wondering whether there was some restriction on geographical limits if Metis self-identify. The non-status in B.C. generally do not identify as Metis, so there is an issue there.
Mr. MacDonald: I have several points in response to your supplementary question. The courts have laid out a test for Aboriginal rights, which will likely have an application outside Ontario. We will have to assess exactly where it applies based on what the court has said. I cannot say that it applies in B.C. any more than I can say it applies anywhere else, but with that test we will be able to make some objective evaluation hopefully of where historic Metis communities were.
Senator Carney: That is fundamental. We need to know what the reference point is before we can draft laws.
Mr. MacDonald: The second point I would make is that there is a political organization called the Metis National Council that has fairly strong representation from British Columbia. One of their governing members is from British Columbia, so there is at least a political Metis presence in British Columbia that has a connection to the larger political organization.
In response to your second question, government is trying to figure out where the committee goes with respect to the Aboriginal rights of Metis people. Again, more detailed analysis needs to take place. The provinces are doing their own analysis and we are speaking with them. As well, Metis organizations are still struggling with what this means. We have to sort out how we implement the court's decision in good faith with respect to Metis Aboriginal rights. I do not have a crisp answer for you on that one.
Senator St. Germain: I was going to ask a question but it is basically a supplementary to Senator Carney's question. I did not realize that we were going to have the witness on this issue this morning, Madam Chairman. However, most of us who are Metis have been forced to virtually disband by virtue of the denial of the inherent rights. I speak about my father who was a trapper who was prosecuted, persecuted, had his guns removed and various other things. Basically, we were forced out of the Metis community in which we lived in Manitoba and we had to relocate in other parts of the country. Do you have any idea how they will deal with this, for identification purposes? In my case, it is fairly simpler because my great grandfather and grandfather were allocated property along the Assiniboine River by way of scripts. The ancestral connection is in place. However, the complexities of this are mind-boggling. I am now a resident of British Columbia.
As I mentioned, my father was a trapper and hunter who was eventually forced out of his lifestyle. On his mother's side, there were buffalo hunters in the late 1800s and 1900s. Will the court develop the identification process? How do you see this identification process actually taking place, because, as you are aware, the Metis councils, unfortunately, are not necessarily singing from the same song sheet? Would you like to comment on this?
Mr. MacDonald: That is a big question. I will go back to your comment about the complexities of the case and to my comments about how fresh the decision is. Certainly, the Government of Canada will have to look in detail at what we think the decision means. However, we will provide the only response because the provinces have a large say in how this transpires. We will have to sort out what the provincial situation is and how we can cooperate with them and with the Metis organizations. We will talk to them.
I do not have a pat answer to your question but the government will implement the court's decision, in good faith. It does change the landscape and we are taking it very seriously.
Senator Stratton: To assist in the understanding, I will read from the Powley decision, which is available on the Web site of the Supreme Court. It states, on page 2:
The term "Métis" in s. 35 of the Constitution Act, 1982 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forbears. A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life.
Farther down that page it states:
The verification of a claimant's membership in the relevant contemporary community is crucial, since individuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection to and current membership in a Métis community. Self-identification, ancestral connection, and community acceptance are factors which define Métis identity for the purpose of claiming Métis rights under s. 35. Absent formal identification, courts will have to ascertain Métis identity on a case-by-case basis taking into account the value of community self-definition, the need for the process of identification to be objectively verifiable and the purpose of the constitutional guarantee.
If I may, you had said that the Powley decision had changed the landscape. I would agree with you because I refer now to Senator St. Germain and his historic right along the Assiniboine River. I know that, as a citizen of Manitoba and growing up along the Assiniboine River, east of where Senator St. Germain's family were, that is not defined now as an historic Metis community. We all knew it was but is no longer because the land was too valuable and we took it away.
There is an impact on that community that no longer exists but, under current law, there are still Metis communities in Manitoba that are defined historically. We want to know what the impact is of this decision with respect to that. The definition of Metis in the Powley decision is based on physical, geographic location. The impact of that physical, geographic location could have an impact on the decisions, even though there exist Aboriginal claims under Bill C-6. The impact of this decision will impact on Bill C-6 because of that. All of a sudden, we have historic land claims by Aboriginals and we are superimposing the potential of Metis groups going back historically and claiming a right. They are saying, wait a second; this is not just Aboriginal because we were there as well. The impact on Bill C-6 will be just that.
As you have said, you do not know, we do not know and no one knows the impact. What the heck is the rush to pass Bill C-6, at least until we have a sense of where this is going? That is the fundamental argument. We do not know the impact so how are we to deal with it? Should we ignore it and proceed? That would be a travesty. May I have your comment on that, please?
Mr. MacDonald: You are correct, in a sense, that Metis Aboriginal rights, like First Nations Aboriginal rights, are held by a collectivity. You are also correct in saying that government has to take the court's decision in consultation with the provinces and Metis organizations to know where it applies so that there is a better sense of the magnitude of that decision. I would agree with that.
I wanted to make a distinction earlier, and my colleagues from Indian Affairs will confirm this, that specific claims policy in Bill C-6 does not deal with claims of Aboriginal rights that are set out in the Constitution. It does not deal with First Nations or Inuit or Metis Aboriginal rights. Rather, it deals with a different kind of claim and process. I say that the Powley decision is about the affirmation of Aboriginal rights because specific claims in Bill C-6 do not deal with Aboriginal rights of any people — Aboriginal constitutional section 35 rights.
Senator Stratton: They deal with previous treaties.
Mr. MacDonald: That is a treaty right and treaty obligation that perhaps Canada has not fulfilled. I will have to rely on my colleagues from Indian Affairs to talk about the details of Bill C-6.
Senator Gill: If you do not mind, I will ask my questions in French.
[Translation]
Senator Gill: Based on the information going around, the judgment will affect some 300,000 Metis. Based on your experience and knowledge of the Metis situation, do you think that roughly that number will be directly or indirectly affected with regard to specific claims?
[English]
Mr. MacDonald: There is no way I can say that. The 300,000 population is something that Statistics Canada has recently come up with in a census. That is also the figure the Metis National Council uses to say this is their membership. To what extent the courts give some guidance to that, I cannot say at this point, but certainly the 300,000 supports what the Metis National Council has said, and generally supports what Statistics Canada indicates who are the self-identified Metis population in Canada.
[Translation]
Senator Gill: Based on your knowledge of the Metis situation and the purposes of specific claims, do you think there are currently any specific claims in this country from Metis, that is to say from lands or parts of lands of which the Metis have been deprived? In fact, based on history, that's part of the definition of specific claims. Do you see many Metis who are affected or who might be likely to make a claim?
[English]
Mr. MacDonald: Again, I really cannot say. The Supreme Court decision is very fresh. It certainly has an application outside of the Sault Ste. Marie area. I am not in a position to say whom the decision might cover and whom it might not cover at this time. That will be the source of a fair amount of analysis by ourselves, the provinces and Metis organizations.
I want to go back to the point I made earlier. Again, specific claims policy does not deal with claims about Aboriginal rights, section 35 rights. It has not in the past, whether the rights are First Nations Aboriginal, Metis Aboriginal or Inuit Aboriginal rights. To say that now that we have Metis Aboriginal rights, specific claims will have to be affected, I cannot see the connection right now. I cannot say for sure there are not Metis grievances out there. There certainly are. We have heard them from the national organizations, the courts are filled with them, but I am not sure that has any bearing on specific claims policy or the approach Indian Affairs is trying to take.
[Translation]
Senator Gill: You do not think there are any specific claims from the Metis. Did I understand you correctly?
[English]
Mr. MacDonald: No, I cannot say that.
Senator Gill: You cannot say that.
Mr. MacDonald: No.
[Translation]
Senator Gill: There will probably be other claims. They may not be granted or respected or accepted as specific claims by Indian Affairs, but you can't say that there won't be any.
[English]
Mr. MacDonald: There are certainly many claims and grievances against the federal government by Metis people. Again, the issue I am trying to address here is that the Powley decision does not impact on Bill C-6.
[Translation]
Senator Gill: You know that Bill C-6 places a financial limit on claims as such. The reason we were able to determine is that there are financial limits. Those financial limits are set in the bill because this exclusively affects Indian specific claims.
Supposing we add a few claims, because I anticipate there will be certain grievances or specific claims from Metis. Do you think the Indian Affairs Department will be able to deal simultaneously with Indian specific claims and those of the Metis? Those claims will probably have as much merit as the Indian claims.
[English]
Mr. MacDonald: I apologize. I really cannot speculate on the type of process that might devolve in the future in response to the Powley decision, which is really what we are here to talk about, or how future Metis grievances might be dealt with. I am not in a position to speculate on that.
[Translation]
Senator Gill: I would like to come back to a statement the Chair made at the start of the meeting. She said that we are here solely and exclusively to discuss the Metis question. Those who were in the Senate Chamber have noticed that we have discussed many other questions besides the Metis question.
The Metis question was added as a result of the judgment. We can't discuss the Metis question exclusively without discussing Indian land claims. The present bill was prepared and designed for the specific claims the department was aware of. It couldn't draft a bill for situations of which it was not aware.
The Metis situation or possible Metis claims were not present. Now if we say that we're going to discuss the Metis question exclusively, knowing that this bill was drafted solely for specific claims from Indians — it stated "Indian claims" — I now find it hard to see how we can exclusively discuss the Metis question. That has a direct impact on the rest.
[English]
Mr. MacDonald: I will leave it to the committee and Indian Affairs to thrash that out in more detail. What I can say is that the decision is very new and very fresh. There is a lot of work that needs to be done before we consider what the implications of Powley will be. Again, my understanding of special claims is it does not deal with land claims; it does not deal with claims of Aboriginal rights of any kind. It deals with a particular kind of grievance that is not related to the Powley decision.
Senator St. Germain: For clarification, is the Metis file heading toward Indian Affairs as far as the department is concerned?
Mr. MacDonald: That is again very speculative. Part of my reticence here today is I have not got the crisp answers to those types of questions.
Senator St. Germain: I am not trying to corner you, sir. As a Metis, it would be definitely a concern of mine if it was heading in that direction, because at the present time it is an interlocutor under Minister Goodale that is responsible for the file. I really am sort of asking you for a clarification. Does he work through the Department of Indian Affairs on this particular responsibility, or is this interlocutor scenario outside of the Department of Indian Affairs?
This is not a trap. I am looking for clarification on this because now it is an issue since this Supreme Court decision has come forward.
Mr. MacDonald: The interlocutor function is purposely outside of the Department of Indian Affairs and has really nothing to do with the Department of Indian Affairs. It is a position created in the early 1980s, recognizing that the Metis were in the Constitution and the government needed what they call an interlocutor to represent some of the Metis issues around the cabinet table and to bring Metis interests forward to government. It is a very small division, with a small budget and is quite separate from the Department of Indian Affairs.
The Chairman: Mr. MacDonald, I would like to get a couple of clarifications. In Bill C-6, under the definition section, "first nation" means:
(a) a band as defined in subsection 2(1) of the Indian Act;
(b) a group of persons that was, but is no longer, a band within the meaning of paragraph (a) and that has, under a land claims agreement, retained the right to bring a specific claim; and
(c) a group of persons that was a band within the meaning of paragraph (a), that is no longer a band by virtue of an Act or agreement mentioned in the schedule and that has not released its right to bring a specific claim.
Would the Powley case bring the Metis into that definition?
Mr. MacDonald: I will leave it to the Department of Indian Affairs to give a definitive answer on that, but my assessment is no, the Metis would not fit under any of those particular categories after the Powley decision.
The Chairman: In paragraph 26(2)(f) of the bill, a First Nation may not file a claim that is based on or alleges Aboriginal rights or title. Would the Metis be included in any of that?
Mr. MacDonald: That seems to exclude First Nations from making Aboriginal rights cases. It would certainly exclude any other Aboriginal rights cases from being made there, which is the point I made earlier. That claim is not about Aboriginal rights, whether it is Indian, Inuit or Metis Aboriginal rights.
The Chairman: Thank you, Mr. MacDonald, your presentation is very much needed and was most worthwhile.
We will now call upon the next witnesses, from the Department of Indian Affairs and Northern Development, Ms. Stewart and Mr. Winogron.
As you heard in my opening statements, there was a motion made in the Senate that the bill as amended be not now read a third time, but that it be referred back to the Standing Senate Committee on Aboriginal Peoples for the purpose of studying the impact on Bill C-6 of the recent Supreme Court decision recognizing the Metis people as a distinct Aboriginal nation. That is the question we have been charged with by the Senate to review and on which to make some decisions.
Welcome, and I would ask you the make your presentations.
Ms. Audrey Stewart, Director General, Specific Claims, Department of Indian Affairs and Northern Development: Madam Chair and senators, as Director General of Specific Claims I am responsible for the group that has been providing technical support in the development of Bill C-6. That is the reason I have come forward to try to assist you with some information here.
I believe you have heard from Mr. Winogron in your earlier consideration of the bill, and he is representing the Department of Justice.
In trying to think about what information I could provide that would be of assistance to you, I thought it might be most useful, first, to set out how Bill C-6, as it is currently drafted, deals with the kinds of Metis claims to Aboriginal rights that are set out in the Powley decision, and then to make some comments on why it was designed that way.
I believe the answer to the first question is quite straightforward and it is information that has already come out this morning. Bill C-6 simply does not address this type of claim. It is made clear by clause 26, to which reference has already been made, which says First Nations can bring forward claims and that is tied to the definition that was mentioned a few minutes ago. Indeed, it is focused on making sure that Indian bands, whether they are still under the Indian Act or whether they have moved out from under the Indian Act because they have signed and implemented a self-government agreement, or through the route of a comprehensive settlement agreement, can bring specific claims forward. The bill also, as has been noted this morning, excludes any claim based on or alleging Aboriginal rights or title. That is how the bill currently deals with this type of claim.
I will spend a few minutes on why it was designed this way. The claims resolution centre and the processes set out in the bill were designed to assist Canada and First Nations to resolve a type of claim, a particular type of dispute. Those are disputes that arise out of the history that Canada has had with First Nations. For a long time the Government of Canada has managed the collectively held assets of First Nations, notably land and money, so that Canada has actually managed these on behalf of First Nations.
Canada has also entered into a group of treaties we call the historic treaties with First Nations, and sometimes Canada has not delivered to First Nations the land or the other assets promised in those treaties.
Canada has not had the same kind of authority over Metis collective rights, or over the collective assets and rights of the Inuit. That is one of the key features that identifies the kinds of claims that Bill C-6 deals with. A typical kind of claim that would come up out of this history is a claim that when a First Nation went through a process, it is technically called surrender process to release reserve land for other development. That process was not conducted correctly and therefore the answer did not reflect the wishes of the First Nations, or the surrender was conducted properly but the First Nation never got the money, or indeed the money that was managed by the government on behalf of the band was not managed properly and so the First Nation lost money that way. Those are the kinds of claims that are the focus of Bill C-6.
When I say that Bill C-6 was designed to help resolve this kind of claim — and this shows up in the bill — what we have are a number of the features of the bill working together to help Canada and First Nations deal with these. I will give you two or three examples. First, I will talk about who the parties are to the disputes. When we are looking at the kinds of disputes I have described, the things that we call specific claims, they are usually between Canada and the First Nations. It is rare, although not unknown, for provinces to be involved.
Bill C-6 is designed, therefore, as a process that works between the federal government and the First Nations. There is an opt-in provision for provinces but that is not expected to be the regular way of operating.
As federal legislation, Bill C-6 will direct how the federal government participates in these kinds of dispute resolutions. It cannot bind the provinces without their consent. That is one of the things that reflect the nature of these claims. They are largely between the federal government and First Nations.
I note that the Powley case is one that deals with hunting, as was the Blais case, the other case decided by the Supreme Court relating to Metis.
Hunting falls primarily within provincial jurisdiction so it would seem appropriate that provincial governments would have a central role in whatever process is developed to deal with those kinds of claims.
The parties are carefully defined and the remedies that are set out and available through the process in Bill C-6 are reflective of the kind of claims this bill is intended to deal with. They relate to compensation for loss.
The tribunal can only award monetary compensation. Those claims — and we expect they will be the majority that are settled through the negotiation process facilitated by the commission — can be somewhat broader and we expect will include return of lost land where this is possible, for example.
However, the kinds of claims, settlements, that might result from dealing with Aboriginal rights claims are likely to be broader and require not so much remedies but perhaps reconciliation or a different approach or set of remedies.
Indeed, the process that is set out in Bill C-6 is again tailored to the kinds of claims that are described in it. It is one that supports problem-solving and negotiation with a decision-making tribunal as a backup. The process suits claims that require a particular kind of research and that can be resolved by compensation.
Those are three examples, and we could go through a few more showing how this bill is built with a number of features targeted towards a particular kind of claim.
I can also mention that the specific claims dispute resolution process is only one of a number of processes that have been developed to deal with disputes between Canada and First Nations. This is not the only way, other than courts, that Canada and First Nations have to deal with issues of concern to them.
As a couple of examples, the Office of Residential Schools Resolution sets out some processes to respond to claims from individuals, relating to the residential schools experience. That is a very different kind of issue, a very different kind of resolution process.
More and more as the major agreements come forward, the comprehensive claims agreements and the self- government agreements, those are sufficiently complex that they have built-in dispute resolution processes; processes designed exactly for the kinds of disputes that are likely to come up there. There are more and more examples of dispute resolution processes designed to match the kinds of claims and grievances and disputes that exist.
On the Aboriginal rights, there is quite a bit of history and experience in working with First Nations in the resolution of Aboriginal rights claims. This requires a very different resolution process than the kind available for specific claims. The federal government has two policies: the comprehensive land claims policy, and the inherent rights negotiation policy that helped to frame out the interaction between First Nations and the federal government in dealing with Aboriginal rights.
The focus of those policies is to negotiate agreements that set out the rights of the Aboriginal claimants that are related to ownership, use and management of land and resources, and practical arrangements for the exercise of self- government powers. Those negotiations are of a more political nature. They require the participation of the Aboriginal parties, the federal government, and equally important, the affected provincial and territorial governments. These are claims that could not be resolved by a tribunal or through an award of money.
Instead, they are directed towards political reconciliation and legislative change to provide for exercise of rights, guarantees of access to resources, participation in management and law making powers.
Just as Bill C-6, and the tribunal set out in it, would not provide a satisfactory mechanism to address the Aboriginal rights of First Nations, given the needs of the approach that I have just set out, it would not be an appropriate approach to address Metis Aboriginal rights.
Just before I close, I would like to conclude with a couple of other considerations. One is that the dispute resolution process in Bill C-6 was developed with significant First Nations input. The Metis, who are a separate Aboriginal people with a different history and their own type of claims, were not involved in the years of work that have led up to this bill.
I should also mention workload. As the committee has observed, there is a large inventory of claims already in the system. First Nations and ourselves very much want to reduce the amount of time it takes to deal with these claims. We look to the Claims Resolution Centre to increase the efficiency of the process and the effectiveness so we can speed up settlements. Broadening its scope to include a very different kind of claim, which is not yet very well understood, and would be brought by a different Aboriginal people, would I think undermine the ability of the Claims Resolution Centre to deliver the results we are hoping to see from it.
[Translation]
I gave my presentation in English, but I will be pleased to hear questions in French if there are any.
[English]
I hope this has been helpful to the committee.
Mr. Robert Winogron, Senior Counsel, Department of Indian Affairs and Northern Development: I have nothing to add but I am available for questions, senator.
Senator Austin: I think we have already on the record established that in terms of the order of reference, a slightly amended Bill C-6 be referred back to Standing Senate Committee on Aboriginal Peoples for the purpose of studying the impact on Bill C-6 of the recent Supreme Court decision recognizing the Metis people as a distinct Aboriginal nation. Those are our terms of reference, chair.
We have on the record from Mr. MacDonald and also from Ms. Stewart that there is no relationship between the Powley decision and Bill C-6. They deal with two very distinct communities, and as the chair put into the record, the definition of the applicable community is a First Nation under Bill C-6, which is the bill in front of us. Mr. Winogron, that is your view as well but perhaps you can put your opinion on the record.
Mr. Winogron: It is my view, not only are we dealing with different Aboriginal communities but different types of claims, fundamentally different types of claims, as Ms. Stewart has said. That is my view as well.
Senator Stratton: The other settlement mechanisms did not have the same ceiling or cap. In part of our discussions we have been trying to define the ceiling or cap imposed. We have an amendment coming forward with respect to that.
In your view, does imposing caps limit the Charter guarantees for First Nations?
Mr. Winogron: In my view, it does not. As you know, this is an entirely voluntary process. The jurisdictional limit you are referring to is only a limit that applies to the tribunal of the body, not to the commission. Any size claim can be filed with the commission, as it can now with the department. This body will be dealing with any size claim when it is before the commission.
The commission has a number of tools to deal with them and to settle them. It is only when matters cannot be resolved, at that stage, that the claimant has the option of taking it, if it qualifies, to the tribunal. In my view, there are no legal or other obstacles.
Senator Stratton: The provisions of this bill are optional in that an Aboriginal community, or a band, can decide to bring itself under the provisions of the bill. That is to say, you can use the old system or the new system. If they opt into the parameters of Bill C-6, why then is there a cap?
Ms. Stewart: The jurisdictional limit has been included to ensure that the tribunal can operate within financial boundaries. As a new, decision-making institution, the tribunal needs to operate within a set of parameters. There has to be a budget identified. There has to be money identified so that the tribunal can in fact make decisions.
Senator Stratton: I accept that. It is clear in Bill C-6 that there is a cap on a claim. I think we took it from 5 to 7, and I stand to be corrected. There will then be a global budget annually for the settlement. That is my understanding of it.
On the other hand, you say there is no cap. Forgive me, but I just do not understand. If you decide to go into this and follow the guidelines of Bill C-6, there is a cap of $7 million. However, you say on the other hand, "Well, there is not really such a cap." What is the answer?
Ms. Stewart: The answer is that, for negotiated settlements, there is no cap. The government and the First Nation can reach a settlement at whatever they feel is an appropriate level. There may be components that may include, for example, payment over a number of years or other arrangements.
In order to support those settlements, the government will be able to make arrangements to ensure that the money is in fact available to fulfill the commitments in those settlements.
When a claim moves to the tribunal, it moves outside the government's decision-making system. Thus, the authority has to be in place upfront for the tribunal. That is a budgetary decision to provide those resources.
There are two different systems at play here. Because one works within the context of negotiation, obtaining mandates and voluntary decision making, it can be unconstrained. The other, because it delegates, defers or shifts decision-making outside the normal government processes, has to work within pre-determined limits.
Senator Stratton: If a group decides to take this route and goes to the tribunal, does it have to accept the cap?
Ms. Stewart: Yes, it does.
Senator Stratton: Why would they do that? Why would they not proceed under the old system where there is no defined cap? I do not see how you can coax people or groups to go before the tribunal with a cap of $7 million, if they discover later, perhaps, that their claim is far beyond $7 million and could well be $10 or $12 million. Would they then withdraw?
Ms. Stewart: That is a decision that each First Nation will have to make for itself in respect of each claim it is dealing with.
By the time a First Nation is faced with the decision about whether they would or would not want to go to the tribunal for an imposed settlement, studies would have been done so that both the First Nation and Canada can assess for themselves what they think the value of the claim settlement will be. There will have been negotiations to test out where the range of settlement might be. There may well have been some conciliation or facilitation activity ongoing.
The First Nation will not be entering into that decision process for itself without a solid information base.
The benefits to a First Nation and, perhaps, to the federal government of a tribunal decision at that time is that it gets the job done. If we are tangled up in negotiations and we are not able to move forward, sometimes it is helpful to have someone say, "I have taken an independent look and this is the answer." It just cuts through everything.
Senator Stratton: What I would like to do is reserve the right of recall. We have a fairly substantial list of witnesses that I would like to hear from. Perhaps, after that, if we have more questions, you could come back.
Senator St. Germain: Thank you, witnesses, for appearing this morning.
You clearly state that you do not see the Powley decision impacting at all on Bill C-6. If I see this situation correctly, I believe the decision adds a totally new dimension to Aboriginal issues in the country. Land claims were part of the attempts made by the Metis to settle and to establish themselves in the mid to late 1800s.
By virtue of the fact that they tried to assert their land claims, which they were not successful with, in most cases, is there not a possibility that they could attempt to assert themselves for land, resources and other areas of jurisdiction that by virtue of their recognition now could impact some of the decisions being made under Bill C-6?
Mr. Winogron: Senator, I think the point you are raising is the same point that Senator Stratton raised earlier, that is, if there is a claim being made by a Metis group that deals with land or resources, perhaps there may be a potential for some conflict with the issues that the commissioner of the tribunal is dealing with in Bill C-6.
The way that this body is currently designed, it cannot deal with land or resource issues brought by Metis groups for the reasons I stated earlier.
Metis groups do not qualify as First Nations in the definition under Bill C-6, and claims based on Aboriginal rights or title are specifically excluded from consideration for this body.
Going a little further, if there is a claim that might in some way relate to or conflict with an issue that is being considered by this body, even though the claim cannot be considered by this body, I can say that the process that we designed in the bill is flexible enough to be able to hear about it, both at the commission stage and at the tribunal stage. There are specific provisions in the bill that allow the commission to hear from interested parties. If an issue has a direct bearing on the issue that the commission is dealing with or the tribunal is dealing with, then there is provision that they can hear about it. Even though, in my opinion, the potential for that kind of conflict is extremely remote, there is still provision that it can be factored in.
Senator St. Germain: How could you possibly sit there and say you do not know how the Powley decision will impact the overall outcome of dealing with Aboriginal issues, because it is an unknown at this time. It is something we have never had to deal with. It is not that I want to encumber or hinder the process for our First Nations in dealing with their specific claims, but this is such a new dimension for you to come here and try to satisfy the government's need or their perceived need that Bill C-6 be expedited.
I think that these particular claims could still continue to be dealt with in spite of Bill C-6 or with no Bill C-6, and under the present method, ensuring that Metis, for instance, have reserve lands in Alberta, distinct communities. Do you see a danger in proceeding, as remote as it might be?
Ms. Stewart: The impact of Powley as a decision is really in the area of Aboriginal rights. This bill does not deal with Aboriginal rights. To that extent, I think we are comfortable in saying that there is not an interaction.
Senator St. Germain: Are you saying Aboriginal rights have no relationship to land rights or establishment of land bases?
Ms. Stewart: By no means. I am not saying that.
Senator St. Germain: I am not trying to trap you. This is new to me. We were just chased of out where we were and that was it, and now the whole world changed. I am not trying to set traps. I am trying to get clarification. The worst thing that can happen in any settlement with First Nations is overlaps and what have you. I have always been consistent on that. I see the possibility, as remote as it is, that possible conflicts could arise. Why push something through at this stage if there is a process for dealing with specific claims now? Why exacerbate the situation? Why not just evaluate where we are with this new decision? It could possibly affect land claims and land base. That is the only reason I bring it up.
Ms. Stewart: There is a history of calling things "land claims" that tangles us up here. The kind of land claims referred to under section 35 are what Powley deals with, and they deal intimately with land and with resources and with the people's home base. Specific claims may deal with land but only a certain kind of land, and that is reserve land that has been set aside for Indians and managed on their behalf by the federal government. That is the aspect of land that specific claims can deal with. Just in common usage, people sometimes call them both land claims, but it is because of that difference — and it is a fundamental difference that relates to Aboriginal rights on the one hand and specific claims on the other — that I am comfortable in saying there is not going to be that kind of overlap. As Mr. Winogron has pointed out, if there is a point at which that needs to be looked at, this process contains a mechanism that will allow that to happen.
Senator Carney: I would like for all of us to address the issue before this committee today, which is the reference from the Senate saying that the bill, as amended, be not now read a third time but that it be referred back to the Standing Senate Committee on Aboriginal Peoples for the purpose of studying the impact on Bill C-6 of the recent Supreme Court decision recognizing the Metis people as a distinct Aboriginal nation. We have now had witnesses who have told us that, in fact, the bill before us is not impacted by this decision, that this bill deals with First Nations, and that while we may not know what Metis is, we are told they are not First Nations.
This bill deals with First Nations. If Metis are not First Nations, then I think we can advise our Senate colleagues that since this bill deals with First Nations and a process for dealing with First Nations, that we should proceed.
We are also told that this bill is not based on Aboriginal title. It is dealing with a specific land claim process. Since that is the focus of the bill, I think that we should consider advising the Senate, in terms of the need for First Nations to advance their land claim process, that we should proceed with this bill and direct the government to proceed with a similar type of commission or structure to deal with Metis rights as they emerge.
Given the time frame of this bill and given the work that has to be done with the provinces and the federal government and the Metis themselves on a process that satisfies them, and since this is an apples-and-oranges thing, to use a kitchen-type analogy, we should proceed with this bill since it deals with an entirely different group and an entirely different issue than that that the Senate refers to.
If you agree, I would move a motion saying that we have considered this issue and, in light of the evidence before us, we are recommending to the Senate that they proceed at third reading with this bill but direct the government to examine setting up a similar process for Metis as it emerges. I would like to make that motion, chair.
Senator Austin: I would like to second Senator Carney's motion. We will need the exact wording of the recommendation with respect to the Metis. I wonder if we could write out the specific motion?
I believe it comes to something along these lines, it is moved:
That Bill C-6 be reported to the Senate without amendment, but with the recommendation that the minister...
I am not exactly sure of Mr. Goodale's title in this respect.
Ms. Stewart: He would be the interlocutor.
Senator Austin: The minister is the interlocutor.
Is Mr. MacDonald still here?
Ms. Stewart: No, he is not.
Senator Austin: I believe the wording would continue as:
...the Federal Interlocutor for Metis and Non-Status Indians bring forward as soon as possible a proposal to deal in legislative terms with the Powley decision.
Senator St. Germain: Madam Chair —
The Chairman: Just a moment, please. Let us finish this first. Senator Carney, do you agree? You are the mover; do you agree with the wording?
Senator Carney: Could it be read back to me? We should all be clear what the wording is.
Senator Gill: I want to say something here.
The Chairman: Let us do the process.
Senator Carney: Could you wait until we have the motion before proceeding to discussion?
Mr. Adam Thompson, Clerk of the Committee: It is moved:
That Bill C-6 be reported to the Senate without amendment, but with the recommendation that the Federal Interlocutor for Metis and Non-Status Indians bring forward as soon as possible a proposal to deal in legislative terms with the Powley decision.
Senator Austin: We have reported the bill back with amendments; so add the words "further amendment."
Senator St. Germain: When Senator Gill gets the floor, Madam Chair, he should have the floor and you should not be going back to Senator Austin.
The Chairman: We were clarifying the motion. Senator Gill, I apologize.
[Translation]
Senator Gill: Madam Chair, I would like to know the ground rules in this committee. Do you set the rules as we go along, or do you follow ethical rules, for example, and listen to the people who want to speak? We still have one witness to hear. We submitted a complete witness list. That means that you're denying the right to speak to those people who want to appear in order to testify before the Aboriginal Affairs Committee. You're denying those people the right to speak, when we were supposed to have a few days to hear additional witnesses. Is that democracy in Canada?
I want to know what you and Senators Austin and Carney are relying on in order to impose a gag, to bulldoze the people who want to speak, here in the Native Peoples Hall, in the First Peoples Hall, in our country? What right are you assuming in order to do that?
[English]
The Chairman: Senator Gill, Senator Carney or any other senator may move a motion at any time within the committee. I am only following the proper procedure. We do have witnesses here. This is a motion, and it is up for discussion.
[Translation]
Senator Gill: You have no right to cut off people who want to speak in this forum. You can't stop them from speaking.
[English]
The Chairman: At this moment we are dealing with a motion. We are not refusing anyone at this time. The presentations will carry on. In the meantime, we are discussing the motion.
Senator St. Germain: Senator Gill has put forward a logical case in regard to the fact that we have not heard all of the witnesses. In a case of this nature, where there is so much grey area in dealing with the Metis file, the least we could do is to call Minister Goodale to testify before this committee to clarify the situation.
In as much as I am respectful of what these two people have stated in regard to the way they see this particular issue evolving, it is premature to move a motion at this time when we have not heard all the witnesses. Someone like Minister Goodale, who will be the interlocutor of this particular file, should at least be called before the committee to give evidence on something as important as this is at this time.
A landmark decision has come down from the Supreme Court that may have — and it may be a remote possibility — implications or conflict, as Mr. Winogron has pointed out. Why are we rushing this? I realize Senator Austin has been given a mandate to move this thing along for the government, but times have changed.
The Chairman: Are you recommending that the motion stand until we have heard further witnesses?
Senator St. Germain: I so move.
Senator Stratton: I would second that. We are having a discussion.
If the chair would read the mandate carefully, as the wording is explicit.
The Chairman: The wording reads as follows:
That the bill as amended be not now read a third time but that it be referred back to the Standing Senate Committee on Aboriginal Peoples for the purpose of studying the impact on Bill C-6 of the recent Supreme Court decision recognizing the Metis people as a distinct Aboriginal nation.
Senator Stratton: If you are to study the impact of Bill C-6, or anything, you should not hear from two witnesses in support of the government's position and then move a motion to report. We have a list of 17 potential witnesses to appear before this committee. We have not yet heard one shred of evidence from a representative of the other side. It behoves us, if we are to study this bill, as the Senate does well, then we must do exactly that and hear from the other side. Surely to goodness that is what we are here for. What is the rush? We were given until October 7 to report. Are we jumping off a cliff? What is the purpose of doing this? We are not doing our job if we fail to do this.
Senator Carney: I object to that statement, colleague. I have the right to make this motion, and Senator Austin has the right to second this motion and have it discussed. You have made your comments, but I do not think that you should make them in a derogatory way about a motion presented by a colleague.
Senator Austin: Honourable senators, I wish to make clear the reason why I supported Senator Carney's motion. We have heard from three witnesses and each of them has told us what we already know, and that is that the Powley case has nothing whatever to do with Bill C-6.
We were asked to deal with the relationship of Bill C-6 to the Supreme Court decision in the Powley case. The evidence is patently clear that there is no relationship between the two. All of us know that. We all know that the reference was sent here to define that one issue and that one issue only.
The Senate has other work to do. The senators at this committee have other work to do. I am totally sympathetic to the Metis people. I was part of the Senate and House committee that established the Metis people as an Aboriginal people. I supported that work very strongly. I support very strongly the evolution of the definition of the Metis people and the rights of the Metis people. However, this is not the place in which to have that dialogue.
I think Senator Carney had a very good suggestion in urging the interlocutor to come forward to define for us the government thinking with respect to the standing and status of the Metis people. That is not something for us to do in this committee in relation to Bill C-6.
With the greatest respect to all my colleagues, all the issues of Bill C-6, whether caps or compensation levels or consultation, were thoroughly canvassed in this committee. None of the issues in Bill C-6 were referred to this committee for further review. The proper place to review those issues is on third reading. If senators have amendments to make on third reading, that is where we should debate Bill C-6.
Bill C-6 does not belong back in this committee. Therefore, I believe Senator Carney is quite right in moving her amendment and for those reasons I support it.
[Translation]
Senator Gill: Madam Chair, Senator Austin says he's satisfied with the arguments and comments he's received to date. I would like to give him some information.
There are hundreds of special claims in the country: approximately 15 or 16 are special claims from Ontario. I would like someone to deny this if it's not true. The Government of Ontario is involved in negotiating some 12 of those specific claims. Can you contradict me on that?
In Quebec, most of the specific claims have arisen over municipal or provincial territories, not on reserves, as you mentioned, not on reserve lands.
These are specific claims that people are making because they think that the lands belong or always belonged to them. I can provide you with evidence, if you wish.
Now it's being said that everything has been resolved. We can move into action on Bill C-6. Have you heard those comments? Do you know many specific claims there are in the provinces involved? Do you know how many specific claims there are in which there is an overlap in Quebec and elsewhere in the country? If everything has been resolved, you must have that knowledge as well. I imagine the Department of Indian Affairs has the answer. Do the senators at this table have that information? If everything has been resolved, we must know everything on the subject.
[English]
The Chairman: Ms. Stewart, would you like to respond?
Ms. Stewart: Thank you, yes. Indeed, there are a number of specific claim negotiations that involve provinces. Notably, in our past, the negotiation of settlements to treaty land entitlements in the Prairies has required provincial involvement. That is not how most of the claims are addressed. Indeed, in Quebec and elsewhere through the country, when claims relate to land, that land is not always currently part of a reserve. Indeed, many of the land-related specific claims deal with land that used to be part of reserves. First Nations feel they have lost those lands improperly. Almost by definition, this refers to land that is not now part of reserves but used to be part of reserves. The claim is that the legal procedure required for removing land from reserves was not done properly.
Senator, you are quite right. Many of the claims in Quebec — and elsewhere; this is not exclusively in Quebec — involve land that is not part of reserves now but was part of reserves. The whole core of the claim is how the change happened.
[Translation]
Senator Gill: Madam, I can conclude that, although the judgment on the Metis concerns the Metis and not Aboriginal rights, we can say that the same is true in the case of the Indians. Hunting and fishing are often done on lands, normally lands under provincial jurisdiction, and you have to deal with the province or the municipality. How can you say that the judgment on the Metis has no impact on the present specific claim? We do not know. Why could we not have witnesses who could tell us that the judgment definitely has no impact because of jurisdictions, history and what currently concerns the Indians?
The provinces are demanding jurisdiction. I am an Indian, I go to school, I am under provincial jurisdiction; I am an Indian, so I am under federal jurisdiction. We know moreover that there are always overlapping jurisdictions. There are Indian Affairs offices that handle that.
[English]
Mr. Winogron: Senator Gill, I think the point about provincial participation was that the majority of claims currently do not require provincial participation, but it should be clear that Bill C-6 provides for provincial participation where it is necessary and where the province agrees to participate. This process envisions that. It is not a question of provinces not being able to participate. That is the first point.
Second, the reason the Powley decision does not affect this bill is very much a question of definition. Powley deals with an Aboriginal right. That is the nature of the right that it deals with. By definition, this bill specifically excludes a claim based on that type of right. That is why we are confident in saying it has no effect.
Honourable senators might recall that I was counsel for Canada on the joint task force when we discussed this bill over a number of years. During our discussions, we considered what type of claims should be considered by this new body. It was agreed fairly early on that claims based on Aboriginal title and Aboriginal rights should not be addressed by this body.
All the participants to the joint task force agreed that, because of the nature of that type of claim, because of the extraordinary amount of effort that it takes to establish what an Aboriginal right is — and we then had in mind the Delgamuukw decision which had something like 60,000 pages of transcript at the trial level — and because of the dimensions of that type of case, it was fairly easy to agree at that point that this body should not deal with that type of case. We have a backlog and an inventory of these particular kinds of cases. If we were to add the new caseload on top of that, it would not be an efficient process. We were able to agree early on that this is not the kind of claim that this particular body should deal with.
Senator Tkachuk: I disagree with a couple of points that were raised by the mover and seconder. It is obvious that the Senate thought there was question about the ramifications of the recent policy decision on Bill C-6 because they asked us to study it. It would be unusual for the committee to merely call two witnesses from the department and then make a decision. As a senator and member of this committee, I am not comfortable with reporting to the house that we have studied the issue; that we have done what was asked of us; that we listened to three officials from government departments; and that we are done.
Madam hair, I am not sure whether you were aware of this but at 10:30 a.m. the opposition has been called to a special caucus meeting. It will be difficult, therefore, for us to continue this debate and I would like to deal with this issue at the next meeting. I move adjournment of this meeting.
The Chairman: We already have a motion on the board.
Senator Tkachuk: There is no debate on an adjournment motion — you vote and you are gone. I am asking that we deal with this when all of us are able to be present.
Senator Austin: I have a point of order. We have a witness who has come here for this meeting. I was not aware of the 10:30 agenda today or I would have been happy to accommodate. I wonder whether one person from the opposition could stay to hear the evidence of Mr. Chartrand?
Senator Tkachuk: The adjournment is not a debatable motion.
The Chairman: Is there a question? Honourable senators, is it agreed that we adjourn?
Some Hon. Senators: Yes.
The Chairman: All those in favour? All those against?
Carried, with our apologies to Mr. Chartrand.
The committee adjourned.