Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 3 - Evidence
OTTAWA, Tuesday, June 13, 2006
The Standing Senate Committee on Aboriginal Peoples met this day at 9:31 a.m. to examine and report on the nature and status of the Government of Canada's Specific Claims Policy.
Senator Gerry St. Germain (Chairman) in the chair.
[English]
The Chairman: It is my pleasure to welcome you to the Standing Senate Committee on Aboriginal Peoples. As the chair of the committee, I would like to begin by informing committee members that our committee begins a new study ordered by the Senate on May 30. This committee intends to examine the federal specific claims process with the view of making recommendations to contribute to the imely and satisfactory resolution of First Nations' grievances.
This will not be necessarily a lengthy study. We are trying to establish why it takes so long to deal with these particular claims. It is a 9- to 10-year process in most cases.
Before we do that, I want to deal with some housekeeping regarding budgets and various references. One item refers to legislation and the possibility that we receive legislation. I believe you have those before you.
I want to deal with the first one; the budget on legislation. It is a small budget that in all likelihood will not be used if no legislation comes forward, but as a process we require this budget to be approved. It is an $8,800 budget. Are there a mover and seconder for this? Thank you, Senator Peterson and Senator Gustafson. Are there any questions regarding this particular item?
Senator Watt: When were these items prepared because I just got them? I have not had time the review them. I wonder whether the way we are moving —
The Chairman: Would you like to deal with it?
Senator Watt: I would like somebody to explain them because we have not had a chance to read them through.
The Chairman: This budget was prepared by the clerk and it is a regular process of the committee to have this particular budget approved, according to the committee clerk. Have you any questions specifically?
Senator Watt: I question it because you mentioned in your opening remarks that this budget is geared towards handling the legislation; is that correct?
The Chairman: That is correct.
Senator Watt: I understand.
The Chairman: There may not be any legislation, Senator Watt, in which case the budget will not be used. It will be used only if legislation comes to the committee from the other place.
All those in favour?
Hon. Senators: Agreed.
The Chairman: The second item is the one on specific claims. For this budget we anticipate a minimum amount of expenditures because most of the work will be done in Ottawa. This moderate, straightforward budget will cover working meetings here in Ottawa. Could I have somebody move this particular item forward?
Thank you Senator Gill. Are there any questions?
Senator Watt: I have a question reflecting the terms of reference.
The Chairman: Yes, I understand. However, this is the initial budget and I do not know where this process will go. We are trying to keep it as tight as possible so we can come up with a recommendation to the minister and to the proper authorities to expedite the process.
Senator Watt: I understand.
The Chairman: Are there no other questions? All those in favour?
Hon. Senators: Agreed.
The Chairman: Approved.
The next item is more complex. It is the economic development study that was initiated under the leadership of Senator Sibbeston. This particular budget is for the final parts of this study. What is recommended is one trip with the full committee to Western Canada and the rest is for day trips out of Ottawa to cover the final aspects of this study.
Unfortunately, senators, I received this information only this morning. Mind you, we had time in steering committee to go over it. There is nothing out of the ordinary in this budget. The committee will decide how many day trips we take out of Ottawa.
Can somebody move this?
Senator Cochrane: Can I ask a question? Within your briefing, you have a fact-finding mission to Millbrook, Nova Scotia and one to Labrador. Will this travel take place in that time?
The Chairman: We budgeted for this trip. It is not a full committee. This is fact-finding.
Senator Cochrane: When will this trip take place?
The Chairman: Hopefully in the fall.
Senator Gill: I see some options. I do not know if the others have that.
The Chairman: This is part of the steering committee to help you make a decision.
Senator Gill: I will give my comments on that. As I mentioned previously, I think that we should spend money elsewhere. There are bigger problems elsewhere. I think that perhaps we can continue this study, but here in Ottawa, and by having the witnesses here instead of spending money there. We should spend money on what the minister has asked us to do, the main issue we face, instead of spending money on travelling, talking to people and looking at good projects. We know there have been some successes in our area; we know that already. We should put our energy into something else.
Senator Watt: Senator St. Germain, we are undertaking an economic study of what areas are successful and what areas are not successful.
I think we are ahead of ourselves. The whole question of equity — the land base — needs to be dealt with before we can ask those questions.
The Chairman: Honourable senators, an order of reference was presented and passed by the Senate that this study be carried out. I hear what the honourable senator is saying and Senator Gill, you have been consistent. You have indicated that you could see time and dollars spent in different areas. I think you fully support the question on specific claims.
This study has been commenced. A considerable amount of money has already been spent. Unfortunately, Senator Sibbeston is not here today as he is attending meetings in his region. He commenced this particular study and when we started it, most of us were on the committee. I have tried to mitigate the costs and, seeing that we have spent over half of what was anticipated, complete the study with a minimum amount of travel and a minimal amount of expense.
Since we have a reference from the Senate, I think it would be in our best interest to complete this study. The fact we have passed the budget does not mean we have to spend the money. I am prepared to bring witnesses to Ottawa if we can obtain results. I am prepared to work with the committee in that direction.
Senator Watt: Have you looked into the possibility of confining the two studies based on the request the minister made to help expedite the specific land claims issue? We will focus on what is workable and what is not workable.
The Chairman: To combine the studies would defeat the purpose of our reference to specific claims simply because specific claims have been a problem for years. The issue has come to the surface as a result of certain incidents that have taken place recently in the country where specific claims have not been settled. That is why the minister is working with us. We met the minister as a committee, and he wants us to focus on this issue.
As far as travel and mitigating costs is concerned, I am prepared to work with Senator Gill and Senator Watt to ensure that if we can do this economic development study here in Ottawa together with Senator Sibbeston, we will work to accomplish that.
I want to go forward with this budget so we at least have options available to complete the study. A lot of effort and taxpayer dollars have gone into it, so I think it is only right we finish it. However, we do not have to complete it in a manner that is costly. We can mitigate the costs throughout the process.
Senator Watt: What is the total amount?
The Chairman: The total amount is $264,830. The majority of that amount entails the costs of travelling as a committee to Western Canada. That trip would encompass western Saskatchewan, Manitoba and parts of Northern Ontario.
Senator Gill: It does not cover the East?
The Chairman: No, it does not. The entire budget covers everything.
[Translation]
Most of the time, it is in the West, the whole committee travels there.
[English]
Senator Gill: If we approve this budget, does that mean we approve the plan?
The Chairman: Not necessarily, no: It is tied to a plan, but nothing says we must spend the money.
Senator Peterson: Will we see the culmination of this report?
The Chairman: This process will complete the report.
Senator Cochrane: I am new on the committee. I am replacing Senator Segal. Do you have a time frame for completing this report?
The Chairman: This report is to be completed no later than June 30, 2007. The committee is to retain until September 1, 2007, all powers to publicize its findings.
Are there any other questions? If there are none, do I have a mover? So moved by Senator Gustafson. All those in favour?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried on division. Thank you, honourable senators.
[Translation]
Before we begin, allow me to introduce the members of the committee.
[English]
I will introduce members of the committee in alphabetical order. We have Senator Dyck from Saskatchewan; Senator Gill from Quebec; Senator Gustafson from Saskatchewan; Senator Peterson from Saskatchewan; Senator Cochrane from the Atlantic provinces; and Senator Watt from Quebec.
Today we have before us officials from two departments, Indian and Northern Affairs Canada and the Department of Justice. Both departments are involved in the specific claims process.
We have asked the witnesses to come before us to explain the process, its stages and from their perspectives the problems that slow down the process of claims resolution.
From Indian and Northern Affairs Canada we have Ms. Audrey Stewart, Director General of the Specific Claims Branch. From Justice Canada we have Ms. Sylvia Duquette, General Counsel for Specific Claims.
I welcome both of you this morning. I have had the privilege of meeting Ms. Stewart before, and I know how competent she is. We understand that you have a presentation for the committee and that you will share the allocated time between you, which is about 40 minutes. My colleagues will have questions afterward.
Audrey Stewart, Director General, Specific Claims Branch, Indian and Northern Affairs Canada: Thank you for giving us an opportunity to speak to you about something I know interests and engages Ms. Duquette as much as it does me.
We have provided background materials in a binder that I hope has been distributed. I will refer to that from time to time.
Before my presentation, since 40 minutes is a long time, I will indicate with Ms. Duquette's help what we plan to talk about.
I propose first to provide an overview of the program: what it is for, the general principles under which it operates, resources and what the program delivers.
Second, we will go through a more detailed description of how the program operates. I will refer to material in the binder at that time.
Third, I will talk about the question of timing. That seems to be the key issue here: how long it actually takes and what goes into that time. We will talk a bit about what we do within the government in administrative terms to reduce the time required.
The specific claims program is one of the government's longest standing alternative-dispute-resolution programs. It was established to allow First Nations the opportunity to negotiate and the opportunity to resolve a series of claims with the federal government. These claims deal mostly with the government's failure to protect the assets of First Nations as managed on their behalf or to fulfill certain promises made in historic treaties.
There has been a period of, in some cases, 200 years where the federal government has managed assets on behalf of First Nations. In that period of time, the government has made mistakes, ones that need to be remedied. This program provides an avenue to accomplish that.
I wish to begin by bringing some fundamental operating principles to your attention. The first one is the fairness that we seek to achieve in the process. Not all claims, but many, are very old. Many deal with subjects where there is not necessarily clear guidance from historians or from the courts as to what the facts are and the best ways of dealing with them.
Attention to fairness and finding out how to be fair to the First Nations, to the people of Canada generally, and in particular, to the neighbours of the First Nations, the people in surrounding communities, is of great importance to us.
To attain that fairness we use the best available standards we can find for fairness. One of the reasons why Ms. Duquette is here with me is because seeking legal advice on the obligations of the federal government is one of the prime ways we have of assessing fairness, to the extent that there are independent standards outside policy. That is one of the touchstones we use.
Another is a real attention to historical research. We have to remember that these claims arise out of situations involving real people, in real places, and in real time.
Each claim that a First Nation brings forward relates to its own history and to a series of specific events that the First Nation feels has damaged its ability to manage and benefit from its resources and land that it should have. We need to invest the time to do the research and to understand the situation.
Some claims are very old. A number of them go back before Confederation. Much of the information we have in historical terms is in government documents. They can tell a compelling story. They do not necessarily tell the whole story, so our research often goes beyond documents. The research is challenging and must be done meticulously to get the fact base right.
The other area where we invest a great deal of time and detailed attention, once a decision has been made to negotiate a claim, is to get an assessment of what a proper settlement might be.
Again, we do fairly detailed studies, often with the First Nations with whom we are negotiating. Those studies may be land appraisal studies and studies to assess damages caused to the First Nation by loss of use of land or loss of use of interest rates and resulting monetary losses.
I want to make this point up front for two reasons. One is that we focus on working with individual First Nations to understand their claims. That work is an integral part of the process and it is important to reaching a final solution that is acceptable to all.
The other reason is to highlight that there are good reasons why dealing with claims takes time. In our efforts to speed up the process, to get resolutions faster, we need to keep in mind some things that relate to the nature of the work we do. That is the first operating principle.
The second operating principle is that we deal with individual First Nations as separate parties at the negotiating table, so that there are funding programs either through contributions in the development period of claims or loan programs while the claims are negotiated that put the First Nation into the position of being an equal partner at the negotiating table.
The third operating principle is mutual acceptability. The resolutions and the process itself are voluntary. First Nations may use this dispute resolution process. They may also, if they so choose, use the courts.
That opportunity is open in every case.
The negotiation process is chosen as our prime resolution tool because it leads to jointly acceptable solutions, and the settlements that we reach are ratified by First Nations, almost always through a community vote unless the settlements are very small.
I would like to bring to the committee's attention those three principles that we try to use to guide how we operate the program. The program does deliver results. The program both reviews claims from First Nations, and accepts many of them for negotiations. Our record shows that we accept about 70 per cent of the claims that are brought to us.
I think the settlements to date are 273. Of those settlements, about half include the return of land or the ability for the First Nation to purchase land to add to their reserve. About a third of the settlements include provincial involvement and provincial contributions, and so, these settlements are not only between the federal government and First Nations. Provinces are also important partners.
Settlements to date have delivered over $2 billion to First Nations, and have provided the opportunity to increase the First Nation land base by about 15,000 hectares. That increase will be achieved over time as land is purchased and added.
All settlements include a financial component, but the range in size of financial components is very wide. To give the committee a feel for this, the smallest cash component was $12,000; the largest was over $150 million. About half the settlements fall under $2 million. As you can tell from that range, the nature of the claims also varies widely. We deal with a lot of different claims.
To give a few examples of the kinds of things that come to this program, there will be claims under the numbered treaties that cover Ontario, the prairies and into the territories. The government promised to provide a certain allocation of land to First Nations. For various reasons — sometimes miscounting and sometimes confusion — all that land was not delivered, so we have a number of treaty land entitlement settlements that deal with that particular problem.
Also, a number of claims dealt with reserve land or resources on the reserve, such as timber or gravel taken either without the agreement of the First Nation or with the agreement, but not appropriately paid for. That type of land claim is another kind we get. Occasional claims relate to management of money held on behalf of First Nations. Many deal with expropriations: whether they were done properly and whether, for example, when land was no longer required for the purpose it was expropriated, it can be returned to the First Nation.
Again, we deal with a variety of claims. One reason our policy is so general is that it needs to be flexible enough to deal with the range of circumstances presented to us.
I will give you an example of a settlement reached last year, to illustrate some of the complexities that arise in the negotiation process. I guess the message here is that settlements are not only about money. This claim was about land that was expropriated for railroad use to support the war effort in the Second World War. Although the plan was to expropriate the land, the expropriation never went through but the land was used nonetheless.
As part of that expropriation process, a First Nation lost access to part of its reserve because it was barred by the new railroad spur. The First Nation had to work with the neighbouring municipality for access to the reserve. When this claim came to settlement, clearly there were things that needed to be addressed other than returning the land and providing compensation for its loss of use.
There were environmental issues. This piece of land needed three levels of environmental assessment and some remediation before it could be used again by the First Nation. Access through the reserve or around the reserve needed to be worked out with the local community.
All that was done and a settlement was reached, which solves a whole series of problems. This settlement cost less than $2 million, but it was an important settlement to the community and to its neighbours. The settlement took a lot of goodwill and a lot of hard work from the First Nation, the users of the railroad, the neighbouring community, and the department to make it all work.
I am trying to explain here that sometimes settlements are about money; sometimes the problems are easy to solve; and sometimes it is best to take the time to work out the details with the communities and the First Nations to get a solution that is much better than, for example, a court settlement could offer.
With that, I will turn to how the program operates. In your binders, you have a flow chart. We have provided this flow chart to help walk us all through something that sounds so simple, namely, a claim where the government has made an error needs to be fixed so let us fix it. How can this process be so complicated and take so long?
There are a number of different colours on the chart. The yellow indicates actions that are primarily the responsibility of the First Nations. The mid-colour blue is what the federal government does. I have provided greater detail in some of the steps that the federal government takes. We also have indicated a few areas where provincial actions are required. We have focused here on what the federal government does. Certainly, the First Nation and the province when it is involved each has its own internal decision-making system, which we have not included on the chart.
If we start down the left-hand side, here is the simple line. First, the claim comes in from the First Nation. It is assessed. The federal government decides if it wishes to negotiate. If the government decides to negotiate, that leads to negotiation, settlement, and then to implementation.
The first stage of assessment, at the moment, takes a great deal of time. It is also the stage where we can make some improvements, and there are some challenges here yet. I will give you some of the numbers of claims at various stages. For your information, under tab 5 in your binder, all these numbers are laid out, both on a national basis and by province, in case people are interested in the breakdown from various provinces. At the moment, 622 claims are in the assessment process. For those 622 claims, the federal government is in the process of deciding whether to enter into negotiations.
When we receive a claim from a First Nation, the Specific Claims Branch, the branch for which I am responsible, has a look at the submission, makes sure it falls within our program parameters, and has a preliminary look at it. In that preliminary look, we identify whether the information is there to explain the claim; whether historical research been done by the First Nation; and whether the federal government wishes to do additional research. That process leads often to conducting what is called confirmation research — research to fill in any gaps that we see to provide a fuller picture, if that is appropriate. At the moment, 91 claims are in that top line of blue, where we are doing confirming research and identifying the issues.
The work we do in developing additional information is then submitted to the First Nation so that they see the total picture. They have an opportunity to review and comment on that. That is the yellow line on the chart. There are 164 claims in that particular stage of the process at the moment.
The next stage is for Indian and Northern Affairs Canada to seek advice from Justice Canada as to whether this claim represents a lawful obligation. At the moment, 309 claims are in that situation. Here, I would like to turn to Ms. Duquette to give us a description of the work that Justice Canada does for us both at this point and elsewhere in the process.
Sylvia Duquette, General Counsel, Specific Claims, Department of Justice Canada: I am in charge of the group of lawyers within Justice Canada responsible for supporting this program. Essentially, we have a fairly straightforward role in this process. The role is to provide advice to the Minister of Indian Affairs and Northern Development as to whether, based on our understanding of the law and what a court would do, the claim discloses an outstanding legal obligation on the part of the Crown.
When we are asked to provide this legal advice to the Minister of Indian Affairs and Northern Development, we do that without taking into consideration things such as latches — a non-vigorous pursuit of the claim by the First Nation; limitations — rules, or prescription periods in legislation; or strict rules of evidence. This means that some claims that would not be successful in a court of law are nevertheless considered outstanding obligations under the policy.
On the basis of the opinion we provide, the Minister of Indian Affairs and Northern Development determines whether he will negotiate the specific claim. Under this policy, the minister's decision to participate in this process of alternative dispute resolution, ADR, or negotiations must be based on the advice of the Department of Justice that there is an outstanding legal obligation.
If the decision is to negotiate the claim, our group also provides legal support to the negotiation tables, another major area of practice. In this context, we provide advice to our client on the legal principles we think a court would apply in determining compensation. We also provide overall legal support with respect to issues related to drafting the settlement agreement and so on. If the minister decides not to negotiate the claim because he has been advised there is no outstanding legal obligation for the categories of claims under the policy, the First Nation may ask that the claim be reviewed by the Indian Specific Claims Commission, ISCC.
The advice provided to the minister by the Department of Justice is based on our best assessment of what a court of law would do. In this process, there is no scope for the Department of Justice to recommend negotiation where we have not assessed a lawful obligation or, on the other hand, to recommend that the minister not negotiate a claim where we have found an outstanding legal obligation.
Where the First Nation requests an ISCC inquiry into the minister's decision not to negotiate, Justice Canada counsel in our section are responsible for preparing the Crown's submissions and appearing before the ISCC on behalf of the Crown. If the parties, the First Nation, the Crown and sometimes the provinces, do not resolve the claim through negotiations, the First Nation obviously may commence or more likely reactivate litigation that has been put in abeyance to obtain a decision from the courts on the validity of the claim.
I emphasize here that throughout the process from the submission of the claim by the First Nation to the negotiations or appearances before the Indian Specific Claims Commission, both parties, the First Nation and the Crown, are represented separately by legal counsel. In the case of Indian and Northern Affairs Canada or the Crown, the Department of Justice represents the Crown, so the Department of Justice plays an expected role in the sense that we provide advice to one party, and First Nation counsel provides advice to the First Nation.
In terms of claims at the legal opinion stage, Ms. Stewart mentioned a figure. I think she said about 300. To be exact, we have 309 claims in the inventory. The research has been completed and the claims are waiting in an inventory for legal counsel to do a legal opinion. The legal opinion itself currently takes about two to five months to prepare, so the hands-on time, if you like, for a lawyer's work on a particular claim is usually between two and five months.
The Chairman: For clarification, you are referring to your department?
Ms. Duquette: Yes, this is the Department of Justice.
The Chairman: And the specific department that you are responsible for?
Ms. Duquette: That is correct.
The Chairman: Thank you.
Ms. Duquette: As to why it takes so long, Ms. Stewart has spoken to some of those factors. The age of the incidents giving rise to the grievance is one factor. In other words, the historical fact record is long and complex, sometimes stretching back before Confederation. In addition, much of the law in this area is complex and subject to differing interpretations. It is a very intensive role in what is essentially a legally based policy for the Department of Justice.
While I have a moment, I might speak to something about the Indian Specific Claims Commission. The ISCC was set up as a commission of inquiry. It acts under the authority of an Order-in-Council under the Inquiries Act. Essentially, the commission has authority to inquire into and report on two matters: specific claims the minister of Indian and Northern Affairs Canada has rejected for negotiation, and disputes over compensation criteria. At the moment, about 35 of these inquiries are underway.
Approximately 70 per cent of all the claims submitted by First Nations are initially accepted for negotiation by Canada. That means the research group provides that information to the Department of Justice and, in about 70 per cent of the cases, the Department of Justice provides advice in which we advise the Minister of Indian and Northern Affairs that indeed there is an outstanding legal obligation on the part of the Crown.
About 30 per cent of claims are not accepted for negotiation by the Minister of Indian and Northern Affairs. That is the possible inventory, if you like, for Indian Specific Claims Commission inquiries.
I might mention a challenge here in the inquiries process. One challenge faced by Canada is with respect to the commission mandate. As I said, the commission mandate is to report on the validity of a claim where the claim has been rejected, but often the claim will change considerably from the claim that was originally submitted by the time it appears before the Indian Specific Claims Commission. The extent of the transformation varies in each case, but our experience has been that the claims before the commission are almost always different in some respects from the claim that was originally submitted.
This means that there are often new legal issues and new evidence, so this is an additional and perhaps unexpected use of the Indian Specific Claims Commission mandate.
Maybe I will stop there.
The Chairman: We would like to ask questions later. How much more information will you impart to us, Ms. Stewart?
Ms. Stewart: I have two more minutes on the process, and then I will talk about what we have done to speed things up.
The Chairman: I think our senators are anxious to ask you questions. Time is our greatest enemy in this process.
Ms. Stewart: To make it shorter, and to run down these numbers a bit more, the number of legal opinions we have and are working towards a decision on is 58. There are 120 claims in negotiation — negotiation and settlement, I will say, because some of those are currently being ratified.
Turning to the final subject I wanted to discuss here, the process does take too long. We and the Department of Justice have been looking through a process re-engineering to determine where the backups were in our system and what we could do to make a difference. This process is fairly formalized. First, you describe what you are currently doing, identify changes you could make, test them out, and then, importantly, implement them. Of course, we looked only at activities that are within the federal system because those are ones we could control.
We were astonished to find that our internal processes had become a lot more bureaucratic than they needed to be, so we have done a fair bit of work to simplify our approval processes to be more efficient in how we do research. We have looked carefully at the division of work between the Department of Justice and the Department of Indian and Northern Affairs so we have historians doing historical work and lawyers doing legal work.
The re-engineering process was very helpful. It revealed some things of which we frankly were not aware. It helped us to figure out how to work more efficiently.
One lesson we learned is that the process we operated under worked one claim at a time. We now have enough claims that we can think about grouping them. We can think about taking all the claims that deal with one subject and asking Justice Canada to look at those together so that there are real efficiencies in their work.
We also can look at groups of claims to find a resolution process that is more efficient for them — or, coming at it another way, all the claims that come from one community. We find those avenues very promising to change the way in which we work so that we can shorten the time frames.
To give you additional time to ask questions, perhaps I will stop at that point.
The Chairman: Thank you very much for the information you have imparted to the committee. I have a quick question. In regard to the Caledonia situation in Ontario, is this claim before your department?
Ms. Stewart: This series of claims is in litigation at the moment, so they are not within the specific claims process.
The Chairman: Are you dealing with this in the Department of Justice, Ms. Duquette?
Ms. Duquette: We are dealing with this on the settlement of litigation side in the Department of Justice, but not within my particular group. I understand that the claims underlying this issue are potential specific claims but, at one point in time, were abandoned specific claims that the First Nation chose to bring forward in litigation.
The Chairman: Are you part and parcel of what Justice Canada is doing on this particular litigation, or do you deal strictly with the claims that are put forward by the Specific Claims Branch?
Ms. Duquette: I deal specifically with the ones that are put forward by the Specific Claims Branch. However, as part of Justice Canada, we assist other colleagues in the department.
Senator Watt: Coming back to your flow chart, has this process been negotiated between the department and the Assembly of First Nations, or has it been established categorically by the department, and the AFN has nothing to do with it?
Ms. Stewart: We work with individual First Nations because they are the claimant groups that bring forward claims. The general process of claims submission — an opportunity for us to review, sharing our information with the First Nations, et cetera — is one that has been accepted by First Nations. In the discussions we have had with AFN — because they have sometimes organized some discussions about these processes with us — this process is not one that they have suggested significant change for as long as government is making decisions about whether or not to negotiate claims. They may have other views on different parts of it.
Senator Watt: You may have misunderstood my question. I am asking if this flow chart has been negotiated. Is that a negotiated deal between the two parties, or has the government imposed this procedure to be followed?
Ms. Stewart: The process was set out in policy. The policy was arrived at after some discussion with First Nations. Regarding the details of how we do our work, we are called upon to do it as efficiently as possible, so we do not negotiate the detailed steps of our internal operations with First Nations.
Senator Watt: The chart — submission claims and then assessment — indicates that the lawful obligations are recognized if the claim meets all the requirements. What avenue does an Aboriginal persons have to deal with grievances with the department, if they have grievances in terms of how the claim is acknowledged — whether it is partially acknowledged, completely acknowledged or rejected?
If it is rejected, it seems that the only opportunity they have is to go to court — no dispute resolution mechanism is in place. If I understood you correctly, in your opening remarks you said this process is an alternative to the dispute resolution mechanism.
I am beginning to understand a bit more now why there is a backlog of specific claims that are not being entertained or are just piling up. I think it is because of the chart here. You have no way of dealing with a dispute. If you cannot deal with a dispute through the dispute resolution mechanism, how can you arrive at the conclusion you need to arrive at?
I am talking about, let us say for example, what happened in Ontario. If there is a dispute resolution mechanism in place, at least they would know where to go. At this point, they can go to the minister and the minister could say yes or no, basically. If the answer is no, the only avenue left for them is to go to court.
If we place the dispute resolution mechanism in your chart, I think that would go a long way. Am I on track or off track?
Ms. Stewart: I think I understand the question a bit better now, thank you.
This process is an alternative to the courts. To be effective, it has to be voluntary for both parties. The First Nation can bring a claim, and this is a place where they can have it considered; we do actually resolve claims.
Senator Watt: In the negotiation, I think you have to go a step further to feel that you are accomplishing something and that things are moving ahead rather than just piling up. That is the point I am making.
Ms. Stewart: I want to go back to your question about what the First Nation can do if the minister decides not to negotiate. The First Nation has a number of options.
In that circumstance, a number of First Nations have better understood the history. If they make a claim that they did not get the money they should have, and a careful look at the accounts shows that they have received the money, then they are satisfied with that. That does happen sometimes.
Another thing that happens is that they have additional information that was not provided. They send it in and we have a second look at it.
The opportunity to litigate is always there. It is the backstop to all alternative dispute resolution mechanisms. The reason for the creation of the Indian Specific Claims Commission was to provide an outside review process for a First Nation that was not satisfied with the minister's decision. It is an alternative, a second chance within this dispute resolution process.
Senator Watt: Mr. Chairman, I will get back to that issue later on, but I want to ask another question because I want some clarification.
In regard to what fits into the criteria of your department, do specific claims only include money and land? Certain appendixes to the Constitution Act, 1898, the Quebec Boundaries Extension Act, 1912, specifically state that before any development takes place, the authorities have to take into consideration the size of land — they use the term ``parcel of land'' — and the compensations.
Those appendixes are quite restrictive. However, over the years we have been able to expand them and deal with the question of the need for self-government. Do the specific claims also provide an opportunity for the group to enter into negotiations on self-government?
Ms. Stewart: There is a separate negotiation process for that.
Senator Watt: What is it called?
Ms. Stewart: It is called the self-government negotiation process. There are a number of opportunities for First Nations to take responsibility for management of their lands and their money. A series of negotiation opportunities is targeted to that. The sense is that negotiating governance is different than negotiating the kinds of specific claims that this process deals with. There are targeted programs to respond to different kinds of negotiation needs.
Senator Peterson: I have a number of short questions. Are the claims categorized as to degree of difficulty, or are they simply looked at in the order they are presented to the department?
Ms. Stewart: We are currently implementing a change to look at claims when they first come in to determine whether they are similar to claims we already have. Then, we can deal with them in the same way.
Before we dealt with claims strictly on a first-received, first-dealt-with basis. Now we are looking at different ways of categorizing or grouping claims up front so we can deal with them more efficiently.
Senator Peterson: How many claims are underway at any given time?
Ms. Stewart: One of the charts under tab 4 gives that information. Currently, we have 776 claims underway. Because we receive claims faster than we deal with them, that number has been growing constantly.
Senator Peterson: Do you have an average length of time to settle a claim?
Ms. Stewart: That question is harder to answer because the claims differ so much. However, Senator St. Germain was in the right order of magnitude when he said 9 to 10 years. Sometimes we can do it in two years and sometimes it takes much longer but, from beginning to end, 9 to 10 years is the current average time.
Senator Peterson: How many consultants have you hired or do you have on staff? What authority do they have?
Ms. Stewart: We have approximately 60 on staff in the Specific Claims Branch of INAC. I believe that 39 staff are assigned to specific claims at the Department of Justice.
Ms. Duquette: To be more specific, we have 22 lawyers assigned to work on specific claims — 19 in Ottawa and 3 in British Columbia. They deal with all claims across the country in providing legal support to about 70 negotiation tables, to 35 ISCC inquiries, to policy development; and to the preparation of, and advice on, legal obligation. There are a few secretaries and paralegals as well.
Senator Peterson: Are they employees of the Government of Canada or are they independent contractors?
Ms. Duquette: They are all employees of Justice Canada. We have no agents.
Senator Peterson: Does that come under the ISCC?
Ms. Stewart: We employ contractors in three roles in the department: historian contractors to do research; outside negotiators to provide assistance in negotiations; and appraisers and other people to prepare studies on land. There is a range of functions to be carried out.
Senator Dyck: I am curious about efficiencies and time at the different stages in the process. Following up on what Senator Peterson said, I was thinking about Saskatchewan. I am not sure how many treaties we have, probably five or six, throughout Saskatchewan. Yet, we have probably close to 100 different First Nations. Can you group claims by specific treaties? For example, Treaty No. 4 encompasses my First Nation so at least the basis of that would cover all the First Nations of that region.
Ms. Stewart: Saskatchewan is one area where we have had success in grouping claims under treaty land entitlement. Most claims we are dealing with in Saskatchewan now pertain to specific instances of land management that relate to an individual reserve. By and large, they relate to an individual First Nation rather than ones that we can deal with at a treaty level. Certainly, we are always open to looking at claims that we might be able to deal with as a group of First Nations. A treaty grouping might be appropriate for certain kinds of claims.
Senator Dyck: What role does the Office of the Treaty Commissioner in Saskatchewan. play, if any, in terms of making the process more efficient?
Ms. Stewart: The Office of the Treaty Commissioner in Saskatchewan has a role that is primarily oriented toward obtaining a better understanding of treaties between First Nations and the government, and sharing that with the Saskatchewan public. There is always the option of looking at what assistance the parties can use in negotiations. The Indian Specific Claims Commission currently provides much of that support in negotiations but it does not mean that other organizations could not do that as well.
Senator Dyck: From what you said, it sounds like the process entails a great deal of research in the assessment phase. I am curious about the amount of time spent in negotiation, settlement and implementation. Are they fairly speedy by comparison?
Ms. Stewart: They are faster but they still take a fair bit of time. In negotiation, we do studies to quantify damages, and that can take a couple of years, depending on the claim. In that area, each party has to obtain a negotiating mandate. The way in which the federal government obtains its negotiating mandate takes more time than perhaps it should.
Drafting the settlement agreement often takes several months. The ratification process, particularly for the First Nations, who generally need to have a community vote on it, ensuring that all members have adequate information to make a decision, generally takes a period of several months.
A speedy negotiation working efficiently through all the stages will take a couple of years to achieve ratification.
Senator Dyck: My final question is directed toward Ms. Duquette. You said that 309 claims are waiting for legal opinion. Is there any way of speeding up the process, perhaps by hiring additional staff or by grouping the claims?
Ms. Duquette: I am glad you asked that question because I wanted to speak to the grouping issue, which is particularly helpful to the Department of Justice. You gave an excellent example when you spoke about treaties.
We deal with unfulfilled treaty obligations. We can do a single legal opinion on, for example, an obligation under Treaty 6 or Treaty 8. That is a one-time activity. The First Nations can then benefit by getting into negotiations and seeing if those obligations have been fulfilled. The grouping of claims to reduce time is very promising.
The other thing that Ms. Stewart mentioned, which helps us enormously, is non-duplication of historical work. That work is the clarification of the roles, so that the historical work comes in a package. The lawyers do legal work and legal work alone. That cuts down considerably on the time.
In terms of resources — the 22 lawyers we have and the work I explained — only so many can be devoted to writing opinions. We need the lawyers to support the negotiation tables. We need them to appear before the ISCC. We would need further resources to speed up the amount of time that it takes significantly, but re-engineering does a number of significant things for us in terms of cutting down the total time.
The Chairman: When did this grouping process start to take place within the department, Ms. Stewart?
Ms. Stewart: We have worked on it for the last year and we are seeing the first results coming back from our resubmission of group claims to the Department of Justice and their review of them. You do not see any time savings yet in the figures we have given you.
[Translation]
Senator Gill: You indicated, Ms. Stewart, that 273 cases had been settled, accounting for 70 per cent of total claims. Do you include all claims in these statistics, that is, initial claims not legally supported, mailed by communities to the minister, saying their rights were prejudiced? Can you determine the number of claims?
[English]
Ms. Stewart: There are many claims that we do not know about yet or that we have not received. You are right. Some communities perhaps have not yet examined their history for claims and certainly have not submitted them.
The department has a support program to assist First Nations to develop claims. It is operated by a separate part of the department, not the part for which I am responsible, so that it can operate with some independence. Support is available for First Nations to develop their claims.
To date, we have received 1,313 claims. First Nations organizations have indicated we have not yet received many land claims, but we are not in a position to give an indication of what those numbers might be.
[Translation]
Senator Gill: You mentioned earlier that $2 billion had been spent on specific claims. How long has the specific claims policy been in place?
Ms. Stewart: It has been 30 years.
Senator Gill: About 273 claims settled in 30 years! How many cases have been reported to the Specific Claims Commission and settled since it was created?
[English]
Ms. Stewart: I would like to clarify one thing. We have settled 273 claims by negotiation, but we have finished the work on 464 claims. That number includes claims that have been settled by negotiation and claims in which no lawful obligation was found. In that number, there were no negotiations and claims where the files were closed because the claims were withdrawn.
With respect to the number of claims that the ISCC has dealt with, I think the ISCC has kept those figures better than we have, but so far, we understand they have released 40 inquiry reports. They have probably another 25 or 30 on route at the moment.
Their recommendations have been split between recommending that the claim did not show a lawful obligation and recommending that it did.
Senator Gill: How many showed that the claim represented a lawful obligation?
Ms. Duquette: I think of the 40 inquiry reports — these figures are according to our records and perhaps the Indian Specific Claims Commission can confirm those — there were approximately five reports in which the Indian Specific Claims Commission did not deal explicitly with a validity of the claim. It made a recommendation to do more work.
Out of 35 reports remaining, where specific recommendations were made on the validity of the claim, four reports were found to have no valid claim. The ISCC found in another four reports that there was no claim under the policy, but they recommended that Canada seek a way to resolve the dispute. That leaves about 27 reports.
In these reports, the ISCC recommended that Canada accept the claim or part of the claim for negotiations. Of those 27, where the ISCC recommended that Canada accept and negotiate the claim, Canada accepted six of those recommendations. Canada has not accepted 12 of those recommendations and Canada has not yet addressed about 8 of the 27 reports.
Senator Gill: More than 50 per cent have been refused.
Ms. Duquette: That is 50 per cent of the original 30 per cent. Remember that 70 per cent are accepted for negotiations at the outset. About 30 per cent are rejected and a certain percentage of these — and I am not sure of the percentage — go to the Indian Specific Claims Commission. It is those claims that are initially rejected that we are talking about here.
Senator Gill: What is your budget for this year to respond to those?
Ms. Stewart: In addition to staff salaries, I have about $4 million.
Senator Gill: You have $4 million as a compensation budget?
Ms. Stewart: No, I thought you were asking about the operations. The current compensation budget is $100 million for this year. Typically, if a large claim is settled that requires additional funds, the department is able to obtain those funds. However, we have a guaranteed access of $100 million this year.
Senator Gill: What are your real needs?
Ms. Stewart: We expect to settle a couple of large claims this year. They are now in ratification. We have special arrangements with Treasury Board to access additional funds. Our estimate is that we will spend more than $100 million this year in settlements. However, that depends on our success in negotiations.
[Translation]
Senator Gill: You receive cases from various communities. They submit a case to you that has been conveyed to the Department of Indian Affairs. You send it to the Department of Justice for an opinion. It is as though there were two parties: the Aboriginal communities and the government.
Ms. Stewart: That's right.
Senator Gill: You have to defend yourself as a party, but at the same time you have a fiduciary's role. How do you reconcile these two roles equitably? You often have to say no and at the same time you are the Aboriginal people's fiduciary. You have to defend the interests of the Aboriginal communities. I do not wish to criticize your employees, but how do you feel about this dual role?
[English]
Ms. Stewart: First, our objective is to find the claims that need to be settled and to settle them. Our objective is not primarily to defend the government; it is to settle claims that need to be settled.
Second, in this process First Nations have access to their own legal and financial advisers. As such, we are very much equal parties. In this process, the federal government does not act as a fiduciary for First Nations.
Senator Gill: Who gives them the access to resources?
Ms. Stewart: They have various sources of money. Some First Nations do this based on their own resources. Some obtain contributions and loans from the federal government from a program that operates separately from the program for which I am responsible.
The Chairman: Senator Gill, thank you. I am sure we could ask more questions in this particular area.
For clarification, did you say that you were not acting on the fiduciary responsibility?
Ms. Stewart: I did. In this negotiation process, the government operates on behalf of the government and people of Canada; it does not operate as a fiduciary for First Nations.
The Chairman: How can the department represent both? Are they not in conflict?
Ms. Stewart: No: The department operates sometimes as a fiduciary and sometimes not. I will ask Ms. Duquette to explain how because this is an important point.
Ms. Duquette: The Crown is always in a fiduciary relationship with Aboriginal people. In the context of negotiations where both parties are represented, we do not carry out fiduciary duties. We do not control lands or assets. We do not carry out a program, we are negotiating. That is why it is important that throughout the process — and I emphasize this — both parties are represented by legal counsel. Counsel for First Nations is there from the time of the submission, throughout the negotiations and the drafting of the settlement agreement. Should it end up in litigation, we still have a fiduciary relationship, but we are not acting in a fiduciary capacity. Again, both parties are represented at that point in time.
The Chairman: It seems they are in conflict.
Senator Cochrane: There is a long process one has to go through before a final decision is made. Can you tell me at what stage the greatest delays are encountered?
Ms. Stewart: At the moment, the greatest delay is awaiting the Department of Justice to do a lawful obligation opinion.
Senator Cochrane: You say you will try to simplify the bureaucracy. Where will you try to do that? Is it in regard to the grouping of claims or do you have another area that you will try to simplify?
Ms. Stewart: Grouping is important. Simplifying work processes is important. We have straightened out our approvals and authorities processes a great deal. Those are other areas where we have been successful in terms of shortening the time the government takes. I agree with Ms. Duquette when she says that additional resources are required to catch up with the backlog that has been created over time.
Senator Cochrane: Right now you do not see any advancement in regard to speeding it up; is that correct?
Ms. Stewart: We are speeding up the process with the items I mentioned.
Senator Cochrane: However, you need additional personnel.
Ms. Stewart: That would make it much easier.
The Chairman: For clarification, as far as the funding is concerned, has it been increasing, staying constant or decreasing in the departments dealing with these specific claims?
In previous briefings from Ms. Stewart, the question of funding has been raised. I would like clarification. It is important. If this is the bottleneck, we would like clarification on it.
Ms. Stewart: Over the last five years, our operating budget has fallen from the order of $6 million to $4 million. We have continued to have access to the funds we need to settle the claims where we get agreements.
The Chairman: What about the Department of Justice? What is your budget as far as numbers? You mentioned 22 lawyers — 19 in Ottawa and 3 in B.C., with the negotiation tables in B.C. Has your budget increased, decreased or remained static?
Ms. Duquette: We have decreased significantly.
The Chairman: Colleagues, this information has to be of concern. We have a new generation of Aboriginals taking over the responsibility of leadership in our First Nations. There are frustrations. People who have come here today from the two departments have been straightforward and candid in presenting the situation. We are out of time but there are a couple of housekeeping matters I would like to take care of.
This chart should be appended to the minutes of the meeting so that anybody wanting to understand it fully can do so.
The other concern is something brought up by Senator Watt. This process has been set up by the departments. For greater cooperation and understanding, it would be nice if the AFN or various other organizations were party to this particular flow chart. In that way we would have at least that support when dealing with the delays. I am sure some delays have to do with the complexities of the particular cases being considered. It would be nice to have the support of these various First Nations organizations that represent First Nations nationally. I referred only to the AFN but there are other organizations as well.
Is it agreed that we append this chart to the minutes of the proceedings?
Senator Watt: I so move, Mr. Chairman.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Is there anything else, honourable senators?
Senator Watt: There is one area that you mentioned in your opening remarks.
The Chairman: I ask you to be brief, Senator Watt. We are out of time.
Senator Watt: For the people whose claims have been turned down, this does not necessarily mean that is the end of it, because they can come back through the court or through other avenues. I think it is important, Mr. Chairman, to take that into account. The claims that have been rejected can always return. When we look at the flow chart, we look at the improvements, but we also have to take the claims into consideration. Do you agree?
Ms. Stewart: You are certainly correct that if a claim is not accepted in this process, it is not necessarily the end of the matter. They can go to court.
The Chairman: We have run out of time. The witnesses from the departments have enlightened us during the initial stages of this reference we have been asked to deal with. We may have the departments back again, in the process of obtaining a better understanding, once we have digested this.
I can only state one case where a First Nation in Manitoba had a treaty land entitlement situation and they were told nine years ago that it would be three months to complete the process, and it took ten years. This is an indication of what we are dealing with and how frustrations can build.
I want to thank both Ms. Stewart and Ms. Duquette for coming this morning. Your presentation has been enlightening and informative. We may ask you to come back, if we may be so bold as to ask that.
Honourable senators, I want to make a brief announcement. The clerk has reminded me that there is a strong possibility that tomorrow's meeting will be cancelled as a result of a funeral service that will take place tomorrow in regard to a Senate colleague.
If there is nothing else, thank you again, Ms. Stewart and Ms. Duquette.
The committee adjourned.