Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 22 - Evidence
OTTAWA, Thursday, October 2, 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 9:05 a.m. to give consideration to the bill.
Senator Thelma J. Chalifoux (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this morning we continue our examination of proposed Bill C-6 and any impact the Supreme Court decision in R. v. Powley may have on it.
I would like to remind senators of the terms of the motion adopted by the Senate. The motion is that this bill, as amended, not be 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 of the recent Supreme Court decision recognizing the Metis people as a distinct Aboriginal nation on the proposed legislation. It is that question and that question alone with which we are seized.
Thank you for coming on such short notice, Mr. Schwartz.
Mr. Bryan Schwartz, Special Counsel, Assembly of First Nations: Madam Chairman, I have a few preliminary comments.
It will come as no surprise that the Assembly of First Nations is concerned with the substance of Bill C-6 and disagrees with the Senate process up until now. Nonetheless, I thank you for once again giving us the opportunity to speak with you. Much as we have very strong disagreements on substance, we have always had courteous hearings here, which is not always the case on these kinds of issues.
R. v Powley is one of at least a trilogy of important Supreme Court decisions that are relevant to your decisions concerning this proposed bill. The Blais case and the Lovelace case are the other two cases to which I refer. I will be happy to discuss those cases once I have completed my presentation. Understandably, this committee is always anxious to get away from the prepared statement and on to the questions and answers as quickly as possible.
Madam Chairman, I appreciate and respect your preliminary comments, about this process not being a reopening of the entire debate but confined to the Powley case. In order to give you the AFN take on how Powley fits into this, I will make some comments about the bill. With your permission, Madam Chair, I will read a short letter from the National Chief into the record. I can assure you I appreciate we are here primarily to discuss Powley.
Senator Harb: I understand that this letter has been distributed to members of the committee. May I propose that it be deemed read into the record, which will allow our witness to have more time to talk about either the content of the letter or other matters.
Senator Stratton: I would like to hear the presentation.
The Chairman: It is very important that the letter is read into the record because it is from the National Chief.
Mr. Schwartz: Thank you. Once the National Chief's statement is read I will be happy to do the best I can to answer your specific questions.
I would caution that notwithstanding the aura of omniscience that academics, in particular, try to portray, these are complex matters and recent decisions. I will do my best to answer your questions but, I do not know if I will have all the details at my fingertips.
The letter reads as follows:
Dear Senator Chalifoux and members of the Senate Committee on Aboriginal Peoples,
The AFN has been invited today to comment on how the Powley decision might affect Bill C-6. However, a few preliminary remarks are in order. Before commenting on Powley it is necessary to make clear the context concerning larger issues surrounding the proposed legislation.
For several years the AFN and federal officials participated in a joint task force, JTF, to consider the requirements of an effective specific claims body. In an unprecedented spirit of partnership, the JTF produced a model of a sound and effective system. The exercise should have stood as a landmark in cooperative policy development.
Instead, the federal government rejected the model suggested by the JTF and terminated consultation. It produced a bill that continues, rather than resolves, the problems of the past, including delay and conflict of interest on the part of the federal government.
The AFN has repeatedly called for a return to direct Canada-AFN discussions aimed at producing a genuinely just and effective bill. So far this has not happened.
It is not too late. Despite all that has happened, a federal government that wishes to return to constructive mutually-respectful and results-oriented dialogue will find a willing partner in the AFN.
The proposed bill is not only unsound in policy terms but also incompatible with principles of natural justice that includes the need for an adjudicative body to be genuinely independent. A fiduciary must not only avoid conflicts of interest but address breaches of its obligations to First Nations with reasonable speed and without arbitrarily excluding whole categories of First Nations' claimants, such as those who were unilaterally promised reserves they never received.
With respect, these issues were not adequately recognized or addressed by the Senate Committee on Aboriginal Peoples. On some issues a very basic misunderstanding seems to remain.
Over a year ago, the AFN openly tabled a detailed legal analysis of the proposed bill. The concerns expressed at that time still stand. They are supported by case law that is no less important that Powley. It would be unfortunate if First Nations find that the courts is the only forum that will responded constructively to these concerns. The Senate Committee on Legal and Constitutional Affairs ought to be given a full opportunity to study the issues raised and consider how they can be constructively addressed. If Justice has any technical responses, they ought to be documented and released for public scrutiny and comment.
The Senate amendments proposed so far are inadequate. The AFN has never been given an opportunity to comment on them before a Senate committee.
One amendment allows individual claimants to send in suggestions about the appointment of commissioners, but the minister retains the power to appoint.
No statutory role is given to the AFN, a national body that has the delegated authority from First Nations to coordinate suggestions and partner with the federal government in ensuring that only qualified and impartial persons are appointed.
The amendment that would increase the cap on individual claims by $3 million to $10 million is too small a step in the right direction. Most claims, on the basis of any independent and credible projections, would be denied access to the tribunal.
Another amendment addresses an extremely limited aspect of the conflict of interest issue. Federal control over appointments and reappointments remain, as well as privileged access of federal public servants, but not members of First Nations institutions, to positions in these new bodies.
Another amendment allows a claimant before the commission to go to the tribunal to apply for a subpoena. This route is an inadequate substitute for the right that is being stripped from claimants to obtain a public inquiry from a commission on a claim with a public report to follow. The minority will be able to proceed to the tribunal. Claims above the cap will have no effective means of pressuring a federal government that is unreasonably stalling or denying a claim.
The federal government still has a chance to meet with the AFN, restore the spirit of partnership and work together to produce a specific claims bill that will benefit all Canadians. Moving rapidly to resolve specific claims will promote economic and social development among First Nations and their surrounding communities. It will remove a long standing obstacle to reconciliation and help to shift the focus of the First Nations federal relationship from redressing the past to building the future together. If the federal government instead pushes ahead unilaterally to impose a fundamentally unjust bill, First Nations will have no choice but to consider and pursue with vigour their legal and political remedies.
The AFN has been asked with very short notice to comment on the Powley decision. Let there be no doubt about some basic principles.
First, the AFN supports reasonable and just responses to the just claims of all Aboriginal peoples, including the Inuit and the Metis.
Second, the AFN recognizes pluralism among First Nations and among the peoples mentioned in section 35 of the Constitution Act, 1982. Equality does not require, or even permit in some cases, an identical treatment of different groups. Their distinctive histories, rights, interests and political choices must be taken into account in appropriate ways.
Turning now to particulars, it is important to recognize that Powley is not the only relevant decision handed down by the Supreme Court of Canada. In the Blais case, the Supreme Court of Canada ruled that the Metis are not Indians for the purposes of the Constitution Act, 1930. It appears that the reasons of the court would surely also apply to the issue of whether Metis are ``Indians'' for the purpose of section 91(24) of the Constitution Act, 1867. The court has acknowledged, in other words, that First Nations and Metis have, for at least some important purpose, different constitutional histories and positions.
In the Lovelace case, the Supreme Court of Canada had recognized that the distinctive legal and social position of the First Nations means that a government can design programs in partnership with First Nations that extend to them only and do not necessarily include the Metis. This is not in any way to deny that Metis are entitled Aboriginal people, or that governments have (e.g., the Manitoba Act, the Alberta legislation on Metis settlements) crafted distinctive programs to address Metis rights.
In addressing specific claims, it is reasonable and appropriate for the federal government and the AFN to develop, in particular, and operate in collaboration, a system that addresses First Nations claims.
For over a century, the Indian Act has operated to vest a large measure of control over Indian lands and assets of First Nations in the federal government. It is from this statute, the Indian Act, that many specific claims arise. The Indian Act, as the Supreme Court of Canada observes in Blais, drew a clear distinction between ``Indians'' and Metis.
The AFN recognizes that Metis organizations have brought claims based on their own distinctive constitutional histories and rights. The AFN would welcome the just and prompt resolution of these issues by provincial governments. Perhaps there may be even a role for the federal government to play.
However, given the long history of justice denied to First Nations in the context of specific claims, First Nations cannot be expected to wait while yet a new process of consultation unfolds. After earlier efforts over decades failed to produce consensus, bilateral discussions between the AFN and federal officials produced the JTF model and it is long overdue that a just system based on that model be implemented.
One of the most problematic aspects of the proposed legislation is its attempt to eliminate the AFN from its role fully recognized in and by the joint task force of coordinating and effectively representing First Nations opinion on appointments and in a three-year review of the new system. Few organizations operate as democratically as the AFN. A national chief needs a mandate from a full 60 per cent of chiefs who represent the overwhelming majority of First Nations. No organization is better suited to consult with and speak for claimants and potential claimants. Its position on Bill C-6 is supported by regional and individual First Nations across Canada. There is no split between the grass roots and the leadership.
First Nations across Canada will not accept any attempt by the federal government to exclude the AFN from full participation in the creation or operation of a truly just and effective system by using the rationale that Canada is home to other Aboriginal peoples besides First Nations. The federal government should be prepared to engage in separate policy processes with each of the AFN and, when and where appropriate, the proper representatives of the Metis.
The federal government continues to underfund the resolution of specific claims. The backlog grows. Debts that involve the honour of the Crown and lawful obligations remain unpaid. Communities continue to suffer. There must be an increased federal commitment to honouring its obligations. The AFN does not accept any potential federal model in which the claims of Metis are added to the AFN claimants on the same or even shrinking allocations.
With respect to Metis claims, federal and provincial governments must provide whatever additional funding is required out of their own resources rather than denying or depriving First Nations.
It might be noted, incidentally, that Powley dealt with a site-specific claim. The Metis claim in that particular case would not fall within the mandate of a specific claims body under either the JTF model or under Bill C-6. At federal insistence, neither model permits claims based on Aboriginal rights or title to be brought forward.
It might also be observed that the federal government has insisted on narrowing the scope of specific claims in other ways, such as excluding claims less than 15 years old, in order to permit a better focus in the federal government's perspective. There are no doubt challenging, complex and distinctive issues involving the Metis that could be and should be the appropriate subject of another dialogue and another system.
In the meantime, the AFN hopes and expects the federal government will finally pick up where the JTF left off and restore reason and dialogue to the creation of a just, effective, independent and accessible process for resolving specific claims.
The Chairman: Thank you, Mr. Schwartz.
I remind senators and presenters of the terms of the motion adopted by the Senate that gives this committee the mandate to review the proposed bill only for the purpose of studying the impact of the recent Supreme Court decision recognizing the Metis people as a distinct Aboriginal nation will have on it.
At this point, that is the only issue with which this committee has been charged. Mr. Jones, do you have anything to add, at this point?
Mr. Roger Jones, Legal Counsel, Assembly of First Nations: Not at this point, Madam Chair.
Senator Stratton: The government keeps saying that the Powley case is about rights. Specific claims are not about rights, they add, and conclude the Powley case has no impact on the proposed legislation.
The government seems to be ignoring the fact that the Powley case is the first of several building blocks that defines the place of Metis peoples in Canada in much the same way that the Guerin case was the first building block for Indians followed by Sparrow, Delgamuukw, and many others.
The right of reclamation of lands and community bases lost because of government improprieties, negligence, omissions and improper commissions is inferred in Powley. Some communities cannot have access to Powley rights unless they are able to have justice with regard to lands so far as to come within the Powley criteria.
I refer here specifically to Senator St. Germain and the history of his family along the Assiniboine River west of Winnipeg.
In the 1880s, the entire Sandy Bay Manitoba Band took script as a result of swindles and false promises by government agents and in essence became Metis. A decade later, then they were able to convince government of the swindle and they were readmitted to treaty and now number nearly 5,000 people on the shores of Lake Manitoba.
It is conceivable that today, inspired by Powley, numerous Metis communities who once came under the Indian Act may be able to argue that it would be discriminatory to exclude them from the specific claims process and the process provided in the proposed legislation.
In Cumberland House, Saskatchewan, many of the First Nations took script, but had no place to go, so they remained on reserve. Years later, the government excised the land on which they resided and turned it over to the Metis community, and as a result there are now questions of acquired rights. The question put forward by Senator St. Germain is with respect to those two examples in history.
Will there be an impact on claims because of the establishment in historical fact of Metis land or communities? Do you believe that or do you think that is a separate issue? I believe the two are interlinked.
Mr. Schwartz: I would not presume to give an exhaustive or complete answer to your question. It is an important question with technical features. There is a definition of First Nations in section 2 of the proposed bill. It can include people who have in the past been recognized as a First Nation. I cannot give you a definitive answer as to whether some of your specific situations fit into that definition. I would have to take the time to contemplate and study that issue.
Should a group that properly should be viewed as a First Nation but was deprived of that status because of government manipulation be able to access the system? I would think that without giving the definitive view of the AFN nation, the answer would seem to be ``yes.'' No First Nation should be arbitrarily denied access to this system.
One of our complaints is that some First Nations under Bill C-6 are in other respects arbitrarily denied access. For example, some groups have been unilaterally promised land but have not received it.
Should a First Nation that was unfairly cast into the Metis track be able to access the system? Again, without having worked this through the AFN, my initial response is that seems reasonable and just. No one should, because of a past manipulation be denied access to this claim in their capacity as a legitimate First Nation.
The larger question is: Should Metis claims be worked into this process in this system? Our view is that the Metis again are an entitled Aboriginal people under section 35. Their just claims as Metis should be recognized and resolved. However, that would be the appropriate subject for another dialogue, another process and another system.
The AFN has worked very hard with the federal government and proved more than enough challenge to try to set up a system to deal with all the complexities of First Nations.
Metis issues raise their own distinctive complexities. The relationship between the federal government and the Metis appears to be different than it is between the federal government and First Nations.
It would be presumptuous to say that we understand and can speak for the Metis on all those complex issues. The best people to do that would be legitimate representatives of the Metis.
We would like to see the bilateral process that led to the joint task force be the basis for a First Nations specific claims body and certainly have no difficulty with a model that addresses the very distinctive situation of Metis and their own legal and political situation.
Senator Stratton: My concern is that despite what we insist on around this table, there will be court challenges anyway. Do you see that this would lead to court challenges on the part of the Metis?
Mr. Schwartz: Would constitutional principles be offended if there were a separate political dialogue and system for the Metis, different from the Assembly of First Nations? No, I do not believe that would offend the constitutional principles. I base that answer on the Lovelace case.
In the Lovelace case, the issue was whether a province could enter into a political dialogue with First Nations, set up a legal regime with respect to gaming and revenue sharing, and have a different track and process with respect to what the Supreme Court of Canada calls non-band Aboriginal people.
The Supreme Court of Canada says that to have that separate dialogue and track is acceptable and consistent with the Charter, and with section 15. The court says that there are distinctive features to the situation in that case of the First Nations in question. They had a distinctive legal role. They were land-based. They had their own statutory situation and there had been a dialogue track with them that had led to the agreement that was challenged. Therefore it was acceptable, said the Supreme Court of Canada, to have one track, one process and outcome dealing with First Nations. There could be different tracks and outcomes dealing with the Metis.
Could there be complications involving the Metis? There has always been a straddle between the two groups. The Indian Act said to some individuals: ``Have your choice. You can choose to accept script and be considered a Metis or you can be First Nation.''
Senator, you are saying I am not familiar with all the details of the cases, but I do not doubt there have been some situations where that divide has not been done as a matter of free choice. There may be situations where some First Nations are not accessing this because they are unfairly denied their status as First Nations. That could create legal difficulties.
We believe that there are exclusions of First Nations in other respects under this bill that will likely attract legal challenge. There are the First Nations in British Columbia and Quebec that have no access at all to this system, not just to the tribunal but also to the commission. The national chief has said that there can and likely will be legal challenges based on that situation.
To unfairly exclude a First Nation from the proposed bill can attract legal challenges and it likely will.
Our submission is that we think it would be appropriate to have separate dialogues and distinct systems for Metis and Aboriginal people.
[Translation]
Senator Gill: I would like to start with a brief comment. This committee's mandate has been repeated twice. The resolution passed by the Senate stipulates that the mandate of this committee is to discuss the Métis question, and only the Métis question. This is an important issue. However, as our leader in the House has pointed out, the discussions that have taken place over the past several months have focussed on Bill C-6 and its impact on First Nations. Given the impact of this bill on the Métis and First Nations, we must not restrict the focus of our discussion solely to the Métis people.
Most of the witnesses who have testified before the committee, and that includes aboriginals, non-aboriginals and AFN representatives, have told us that the proposed legislation should be withdrawn or at the very least, should be substantially amended.
For example, the bill provides for a cap on claim settlements. However, no time frame is specified for ministers to acknowledge receipt of, respond to or settle claims as such.
A number of similar issues remain to be ironed out. Another sticking point is the independence of the tribunal and of the judges vis-à-vis the Minister of Indian Affairs and the federal government.
I would appreciate hearing your views on these matters. Should we move forward with our study of Bill C-6?
You read a letter from the National Chief of the Assembly of First Nations in which he makes a renewed appeal for reconciliation. The National Chief is known, moreover, for his desire to bring people closer together. It seems other chiefs share his wish for reconciliation, provided certain conditions are met. These First Nation chiefs are democratically elected in the same way that non-aboriginal leaders are democratically elected. Aboriginals do not need any lectures from anyone on the democratic process.
As far as the proposed legislation is concerned, do you agree with this position? Should the committee continue to examine the bill and should it be passed by the Senate?
[English]
Mr. Schwartz: The consensus position of the AFN on which there has been no internal division, which represents the views of all the regional organizations and which represents the views of all the grassroots, is that the proposed bill in its present form is unacceptable. That continues to be the position of the Assembly of First Nations, and is the position of the national chief.
The Assembly of First Nations wants a constructive outcome. The Assembly of First Nations thought that the joint task force had been a landmark in showing that working together can produce constructive results in everyone's interests.
Once again, the national chief has said that despite everything, and there are a lot of ``despites'' here, ``Let's get back to the table to see if we can get a good bill that addresses everyone's concerns, including the legitimate concerns of the federal government.'' Despite the fact that the consultations were broken off, the joint task force bill was rejected, the AFN participated in good faith in the House of Commons process and yet every amendment proposed by the opposition was rejected using party discipline and the fact that there have only been tinkering amendments at this stage, the national chief is still saying the same thing.
The sooner that process of constructive dialogue can be restored, the better off we believe everyone will be, and that includes the federal government. The AFN has repeatedly claimed, and we believe in all sincerity this to be the case, that the prompt resolution of specific claims would cost money but is a very sound investment in the future. That opportunity still exists as the proposed legislation has not been passed. If it is passed in its current form, we believe it will be a step backwards, and a very regrettable one given the opportunity for everyone to move forward together.
Mr. Jones: The Assembly of First Nations feels that there is inadequacy in the analysis and the assessment of the potential legal implications of the laws that are being promoted and promulgated through the legislative process. In our view, much of the law-making is driven by expediency, maintenance of control in the processes, such as the claims process, and in economics.
The fact situations that were presented by the senator require full examination. Ultimately, what happens in the specific claims process is that First Nations claimants present their fact situation in order to establish a claim. It is the Department of Justice that decides whether or not a claim exists. They are the ones who determine whether or not a claim is successful.
It seems to me that there is nothing that would prevent anyone from advocating and pursuing a claim through the specific claims process, and the Department of Justice will decide whether or not there is merit in the claim.
No doubt the Metis people will pursue the claims, rights, interests and remedies that they wish to enjoy.
If they received an unfavourable result from an examination of the facts and circumstances that they present, I think that the next thing they would do would be to challenge the decision of the government in rejecting their claim. Obviously, they would have the ability to go to court to pursue a remedy.
Up until the Powley case was decided, any analysis with respect to whether or not the Metis could establish an Aboriginal rights claim pursuant to the test that the Supreme Court of Canada had set out in various cases, including Vanderpeet, would have led to the conclusion that the Metis could not be successful. However, what the court did, and what it tends to do, is to be more flexible and more creative in receiving arguments about how the law can accommodate different situations.
What they did was adjust the Aboriginal rights test that they had articulated concerning First Nations claims. They made one that fit the Powley circumstance. In the end, they concluded that Mr. Powley did establish an Aboriginal right to hunt.
The court would be more willing to receive and consider the arguments of the Metis people than would the government. Fortunately, it is not always the government that makes the choices and decisions about whether people have rights. That is why we have the courts and the Constitution Act, otherwise, the chances are that no one would have any rights in terms of the government perspective about how to run things.
It is certainly incumbent upon the federal government to do a better job of assessing and determining the full implications with respect to their law-making. In this instance, the committee and the federal government would benefit from hearing from as many expert as possible, in order to show that they are engaging in an exercise of due diligence. We want to know that the laws are sound and that the laws do not unjustly exclude people, be they First Nations people or the Metis population.
[Translation]
Senator Gill: Some Senate and government members have questions about the position of the Assembly of First Nations. Under the former regional chief, the AFN took the stand that the bill should be either thrown out or substantially amended. Does the current national chief of the AFN hold the same view as his predecessor?
[English]
Mr. Schwartz: The position of the national chief, as stated in the letter that was read into the record this morning, is that the proposed bill in its current form is not acceptable. The national chief does not support it; the Assembly of First Nations does not support it. All the First Nations that the AFN legitimately and democratically represents do not support Bill C-6 in its present form.
The national chief has proposed, as has the AFN in the past, that the Standing Senate Committee on Legal and Constitutional Affairs of the Senate should have a chance to consider this issue in detail.
The national chief has made clear his willingness to sit down to try to find ways to move forward. That means the proposed bill in its current form is unacceptable. Of course, the national chief and the assembly, as they have always done, are looking for some constructive resolution so that the outcome is not negative. The status quo is unacceptable. The point is to get a system that is better than we have and that starts off well. If we cannot get everything that the Assembly of First Nations wants, we require at least a system with some independence and integrity.
A number of reasonable and important questions have been asked about the technicalities of the Metis. As my colleague Mr. Jones has suggested, many issues and many cases have not been adequately addressed. We talked about the Powley case. What about the Northwest Territories case that is in our legal brief and has been there for over a year? That case states that the federal government has the unilateral power of reappointment, yet, we cannot appoint people to short-term appointments. How can we expect that body to be independent? The body that is proposed in Bill C-6 is not independent.
What about Sethi case found at footnote 30 of our legal brief. That case says you cannot have staff that shuttle back and forth between the federal government and think that staff is independent. That issue has never been examined. Case after case goes unanswered.
With great respect, there are many complicated legal and technical issues with Bill C-6 as a whole, not just with the Metis issue, that remain un-addressed. They have not been addressed in a manner that is remotely satisfactory. One way forward would be for the senate to refer the matter to the Standing Senate Committee on Legal and Constitutional Affairs so that there could be a more thorough examination of that issue. Some of the legitimate and important questions that have been raised with respect to the Metis could also be addressed there.
Senator St. Germain: Mr. Jones, you pointed out that legislation is generally driven by expediency, maintenance and control, and economics.
Senator Austin has clearly stated that economics and budgeting have to be taken into consideration. As a former cabinet minister who worked with budgets, I know finances have to be taken into consideration to a certain degree. However, I agree with you that the legislation is generally driven by expediency or maintenance and control.
However, the economic issue exists. Would you mind commenting on that, please?
Mr. Jones: First Nations people and leaders across the country are also concerned about the economics of coming to a satisfactory resolution of outstanding claims. I do not think First Nations people have any interest in bankrupting the government for the sake of resolving claims.
We feel that the federal government is perhaps driven, at least in terms of the economic perspective, to try to establish in a 20- or 30-year period what they figure the payout should be in full satisfaction of any and all outstanding claims, or at least those that they think they can resolve through this process. It is a unilateral effort at trying to cost it out.
One of the things that would benefit the process is to involve Aboriginal peoples in trying to determine the cost in trying to resolve these claims. If people are forced to settle for less than what they deserve, will that not merely give rise to another claim in the future?
Inasmuch as the government is trying to put a cap on specific claims, the fact that people have been put through an unfair process will simply lead to protracted negotiations, unsatisfied First Nations communities, and the exclusion of many whose claims are perhaps increasing in value simply because the government is avoiding trying to deal with them.
I believe First Nations parties are interested in talking about the economics of all of this and in trying to do a better job in terms of examining those implications, as well as doing a better job at examining what the legal implications are if the proposed legislation becomes law.
The Chairman: Mr. Schwartz, would you like to add something to that statement?
Mr. Schwartz: I agree with Mr. Jones. I do not want anyone to leave with the impression that the problems are insoluble or that the AFN has not attempted to come to grips with them. The joint task force report did propose a fiscal framework. The federal government took that fiscal framework, put it in the control of the federal cabinet, as the overall fiscal framework is, and then added a cap on individual claims, which, in our view, is overkill in the extreme.
Ideas have been put on the table to try to address the fiscal concerns of the federal government. Structured settlements is one idea that was discussed at the joint task force. Not all of the money has to be paid out immediately.
In the course of these discussions, the Federation of Saskatchewan Indian Nations has completely concurred with the AFN position but has said, as a fall-back position, that at least any claim should be able to access the tribunal for validity. The House of Commons opposition parties hold this position as well. Even if a dollar figure is not attached, every claim, no matter how large, should be able to get an impartial and binding opinion from the tribunal. We believe that is consistent with what the Red Book promise, and yet that is not contained in the proposed legislation.
The opposition parties and some of our constituent organizations have also proposed that if there is going to be a cap it has to be much more realistic than it is. This $10-million cap excludes the overwhelming majority of claims.
There are other ideas that are possible. I do not have a mandate to negotiate them, but you can imagine a system that says that a certain number of claims will be considered each year, regardless of size, would give way to some tiering and structure.
We can accept that the federal government is concerned with a fiscal framework. We have tried to work with that in mind and we are prepared to do so now and in the future. We have not been given that opportunity. The JTF process was unilaterally terminated, consultations ended, and it looks as though the proposed bill will be imposed that suits the desire of the federal government to maintain complete unilateral control. The proposed legislation in all respects lowers the overall limit and lowers the individual claims limit when we are dealing with lawful obligations.
The potential for finding a reasoned way forward exists. There are many ideas out there and we can come up with more. We hope we will have the opportunity to do that rather than having the proposed bill unilaterally imposed.
The Chairman: There being no further questions, I would like to thank the presenters for bringing another case forward to us. We really appreciate your endeavours and what you have said here this morning.
The committee adjourned.