Thank you very much, Mr. Chairman.
I'm appearing here as an independent academic, which I have been for 26 years. Intermittently in the last eleven years, including in this round, I have been an adviser to the Assembly of the First Nations on the creation of the new specific claims bill. I have some practical experience from that, but any views I express are my own. The Assembly of First Nations is not responsible for them and is certainly free to take a different position on any of these points, but they have graciously permitted me to appear here in my own capacity.
The last time I appeared before a parliamentary committee, it was a Senate committee. It was the committee that produced the Senate report Negotiation or Confrontation: It’s Canada’s Choice, which made a very valuable contribution to this round. Believe me, I had no inside information that anything actually was going to happen. But I did say at the time that in my entire life I had never seen a convergence of elements such as would permit a longstanding and intractable problem to finally be solved. It just seemed to me at the time that everything was coming together.
A lot of work had been done in the past. Some of it had come to naught, but we knew a lot of the pieces that were needed for an independent claims body. Bill C-6 was not a success, but the opposition parties had engaged with the issue and they made a lot of constructive suggestions that were eventually incorporated into this bill.
The basic issue of specific claims, I think, was increasingly recognized--as I colloquially call it--as non-theological. It really doesn't depend on your philosophy, as long as you accept that lawful obligations should be addressed. No matter which party you belong to, most folks think it's the duty of the government to honourably pay its lawful obligations within the larger context of paying down the Canadian national debt generally. All the elements seemed to be right, and here we are a year and a half later, and everything did go right.
I believe that the new specific claims bill that is before you is a tremendous achievement. That doesn't mean that it meets the platonic ideal of what the absolutely impeccable first nations specific claims bill would look like, but I think it is the best agreement, the best piece of legislation achievable, at this point in history. It represents, finally, a successful conclusion of efforts to achieve something like this that has literally taken over 60 years. It would be a great accomplishment to now see it passed into law and passed into law quickly.
My concern, frankly, is that I have a real sense of urgency here. It's a minority Parliament, and anything can happen. I would greatly regret to see this achievement lost and somehow relegated to one other issue in a future Parliament, when we are now so close to finally succeeding after so many years of frustration.
Very briefly, I'll deal with some of the positive features of the bill.
Independence has always been at the core of the debate. The concern was that the federal government had the last say, for all practical purposes, in claims against itself. This bill provides for an independent body. It will be staffed by judges, people trained and expert in making independent decisions. There will be a voice for the Assembly of First Nations in discussing which particular sitting judges will be appointed to the tribunal. That will be done discreetly and according to the terms of the political agreement, because we must respect the dignity of sitting court judges. We don't want public debates about who's good and who's bad for this job. But very significant progress has been made on that issue.
Delay has been a tremendous problem throughout the entire system. Bill C-6, unfortunately, had too many obstacles, too many unilateral choke points for the minister. A creative idea that was made during the Bill C-6 round was to put in fixed timelines, and now we have them. This new bill says that certain stages can only take so long, and then a first nation can move a claim to the next stage. A claim cannot be delayed at the consideration stage by the minister indefinitely. After three years, the first nation has the ability to move it to the tribunal. It is the same thing with a claim that's been stuck in negotiations for more than three years.
With respect to criteria, Bill C-6 made some progress, but there were still some points of very serious omission. One of them was the issue of unilateral undertakings, which had been recognized as a potential source of specific claims in the Guerin case by Chief Justice Dickson. It is very clear now, in the drafting of criteria, that unilateral undertakings that give rise to a legal obligation can be a specific claim.
I know there have been concerns from British Columbia, for example, about Wewaikum claims, a promise by the federal government to carry out a treaty commission report. In my interpretation of this legislation, those are very clearly covered. We were also concerned in the Bill round about whether pre-Confederation claims were adequately addressed, and there is adequate language in the new draft to address virtually any pre-Confederation claim issue.
Monetary jurisdiction was a very serious concern with Bill . It was sometimes referred to derisively as a small claims commission. The $150 million means that the overwhelming majority of specific claims can be addressed. No federal government to this date has been prepared to proceed without an individual claims cap. Perhaps after a confidence-building process with this new tribunal that can be achieved.
The just treatment of large claims continues to be an issue that I hope will be closely attended to, including by parliamentary committees like this. It is addressed in the political accord, and there's a lot of work still to be done in that. That work in the short run will have to be done outside of legislation, because the $150-million cap means it will not be dealt with. Access to the tribunal will not be provided within the legislation.
One criticism that has been made of the new bill is that the remedial authority of the tribunal is confined to giving money damages. The new tribunal will not have the authority to say “This was your land. It was unlawfully taken away and it's yours again.” No proposal for a new system that has had a buy-in from the federal government over the last eleven years has gone beyond providing for money jurisdiction. Successive federal governments of both stripes have thought that it would be too complicated, too problematic to have an administrative tribunal deciding who owns real property rights, particularly since the federal government doesn't own most of the land to which claims would pertain.
I do want to say that it would underestimate the value of this new bill to have a tunnel vision about the remedial jurisdiction of this new body. Yes, it can only give money damages--that's all the tribunal can do--but before the tribunal makes a decision you have a long process of the claim being considered and opportunities to negotiate. There will be an alternate dispute resolution body to help the parties negotiate. At the negotiation stage the first nation and the federal government are not confined to settling up on the basis of money only. They can be as creative as they wish. The potential that there will be a money award gives an incentive to the federal government to try to negotiate seriously and arrive at creative solutions.
Indeed, after an award is given there is still an opportunity for creative solutions. A band could say, “Well, you gave us our award for $100 million, but actually we would be happier if it was some money and revenue-sharing, or some money and you can find a way where we can get access to some land”. And creative negotiations are possible after an award as well.
So yes, it's a limitation on the jurisdiction of the tribunal. It's a limitation that has never been transcended, even in the model bill, in the 1998 joint task force report. I think one has to recognize that it is a limitation for one specific purpose--what a tribunal can do. It does not limit what the parties can do by way of negotiating a creative settlement before a decision of the tribunal, or afterwards.
Some concern has been expressed about adjudication and adversarial processes. The new system as a whole, not all of which is contained in the bill--some of it will be worked out under the political agreement--will provide for alternate dispute-settling mechanisms, and these will be available at the tribunal stage, not only at the initial filing stage. The rules of the new tribunal do provide for case management and they do provide that a judge can oversee references to mediation, for example.
Sometimes we do a post-mortem when things go wrong. We do it less frequently when things go right, but it's worth doing it in this case. What went right and how can we do it again? In 1998 the joint task force report produced a model bill full of good ideas, many of which are now going to become law if this bill is passed. It was very successful at the technical level: what was missing was sufficient engagement at the highest levels of government.
So officials came up with a really powerful proposal, but government was not ready to seriously move with it at the time. It showed that officials working together can not only engage at the level of concept, but can sit down and wrestle with all the fine details needed to make a functioning system.
The 2003 bill, which is still on the books but hasn't been proclaimed, went off the rails when the dialogue ended even at the technical level. At some point the federal government said, “Consultation is over. Now you're in listening mode. We'll tell you what's happening.” The bill was worked on internally through the federal system. A lot of people in the federal system in good faith said, “This is my problem, that's my problem.” It was sort of an internal negotiation, with the federal government talking to itself. Maybe none of the individual changes seemed to be too bad. You added them all up and ended up with a bill that was simply not acceptable to any significant first nations' constituency.
This time things went right at both the technical and political levels. We had a very successful engagement at the technical level. My colleagues at AFN with whom I worked on this—Candice Metallic, Roger Jones, Tonio Sadik, Vice-Chief Atlee, and so on—at the technical level had a very positive and constructive relationship with federal officials like Sylvia Duquette from INAC, Diana from INAC, Bob Winogron from the Department of Justice, and Jean-Sébastien Rioux, the chief of staff to Minister Prentice.
I can tell you without going into details that there were times of frank and candid exchanges of opinions; it wasn't all group hugs, but it was a very positive engagement in which people were trying really hard to solve technical problems in an honest and forthright manner. I think we were very successful in that respect.
What also made it work was liaison with the highest levels of government. The Prime Minister's staff member, Bruce Carson, was involved in a joint task force committee that oversaw the technical negotiations. That meant when we got stuck on certain points and needed direction, the liaison that was needed between the technical level and the political level worked.
We had commitment at the highest levels of government, and commitment at the technocratic level of government. You need both. It's surprising, but it's a truism of political science that just because the senior levels of government want something doesn't always mean it happens; you need support from the technocrats as well. Technocrats can't make it happen without engagement from the highest political levels. Both happened here.
We had a process of partnership, not only over a few months, but all the way back to the joint task force eleven years ago. I know there's been some criticism that some first nations thought, when they saw the product, they hadn't been consulted enough. I can certainly understand that when you get a new technical bill and have only a few weeks to comment on it, of course you're going to have concerns about whether you've had adequate time to assimilate it.
In fairness, one of the reasons people couldn't see things earlier was because there was a joint agreement that negotiations would work better if they were done confidentially; that it was easier to be candid and try out ideas in a confidential fashion. The federal government has legitimate constitutional sensitivities about sharing legislation in drafting form with outside constituencies. So we had to work under some conditions of confidentiality. It wasn't out of any desire to exclude anyone; it was a necessary part of having the kind of highly detailed engagement in every aspect of the bill that has made it the success I think it is.
I haven't heard all the testimony or seen all the submissions, but it's my understanding from talking to people who have that while there are some conceptual points that people may not agree with—like the $150-million cap—considering the complexity of this bill, there have been very few if any points where people have said “this is just technically wrong”, or “this doesn't make sense”, or “this doesn't add up”.
People on the first nations side don't think there should be an individual claims cap of $150 million; they would like to see no claims cap, and that's a policy disagreement. But if you get to the technical working of a highly complex bill like this, the fact that it seems to have stood up so well to scrutiny and criticism is a real tribute to the process that preceded it.
This process gave the Assembly of First Nations not only an opportunity to vet it, but an opportunity to contribute creatively to the content of the bill.
You can look at the bill and see some creative, innovative features that I think have added to the feeling among first nations that on the whole, while not ideal, this is a fair and legitimate new system. The preamble of this new bill reflects an AFN creative contribution. The idea that there will be an advisory committee to the tribunal in the making of its rules is another AFN contribution.
I've read some of the testimony here. People wonder how elders get a role in this. Well, that will be one opportunity. When the tribunal adopts its own rules, there will be opportunities for all kinds of people to give the benefit of their insight and experience and expertise into contributing to the rules of this tribunal.
We've recognized all along that if all you do is cut and paste the Federal Court rules, this isn't going to work. You need rules of this tribunal that are flexible, expeditious, more informal, so that you can actually get claims settled and not spend eight or ten years litigating or getting caught up in pretrial processes.
The political agreement was a creative contribution from the Assembly of First Nations. It contemplates an ongoing liaison and oversight committee, a forum where the dialogue can continue. It will tackle some of the points on which the first nations believe the current bill is short of the ideal. It will tackle the question of claims above the cap, claims over $150 million, will begin the discussion on what to do about claimants who can't bring a claim under this system because they don't have band status, will deal with the question of additions to reserves, when bands get monetary judgment but want to buy their land back and have it recognized as a reserve.
In 1787 Benjamin Franklin emerged from a drafting convention and was asked by a citizen, “So what did you give us, a monarchy or a republic?” He said, “A republic, if you can keep it.”
The reason I cite that is that, yes, this is a tremendous bill, in my view—and in terms of what's practically achievable here now, not in terms of some kind of theoretical absolute ideal—but even a very sound bill like this will only work in practice if there's follow-up. There's no point in having a system, for example, where claimants have the theoretical ability to access the tribunal but are in no financial situation to do their research, to advocate their claim, or to appear before the tribunal. This liaison and oversight committee is supposed to look at issues such as principles and access to funding. Absent that, the whole system could turn out to be a great disappointment.
For the tribunal rules, you need commitment on both sides, the federal government and the AFN each making their own suggestions as to how these tribunal rules will work. We're hoping that perhaps we can make a joint submission to the tribunal that will contribute to the tribunal's deliberations on how this will work.
I feel a sense of urgency about passing the bill now, before anything can go awry, not because of the bill itself but just because of the macro-politics in which it's located.
The parliamentary process has contributed in a great many ways to its success, from the Senate committee report to the amendments that were made by opposition parties to bills introduced by earlier governments. I think this process has been very useful in giving people a chance to scrutinize and discuss the content of this bill.
But with the greatest respect, I would suggest that the primary and perhaps exclusive focus, unless you can find some technical errors that we made, should be on trying to move the bill through the House of Commons and the Senate stage, say by the end-of-May break, and focusing the attention on what happens next: the “republic, if you can keep it”.
What role can a parliamentary committee make to ensure that this isn't just a Potemkin village kind of statute, but one that makes a real difference? We have the agenda and the political accord. We note what kinds of issues have to be addressed in the months and years ahead: recommendations about this committee supporting the importance of those steps being addressed; supporting the need for the federal government to continue to engage and to provide whatever resources it needs to the Assembly of First Nations and other first nations partners, so that they can consult and contribute; perhaps continuing to exercise an oversight function, having hearings six months or a year from now and asking, “Is this actually working in practice?” That would be a continuation of the very positive role that the parliamentary process has played in the creation of this bill to date.
I'm sorry if I went a little over time, but that's my overview of where we are, from my perspective, on the bill.
Thank you very much.
The need to be discreet and confidential.... There was a good debate on both sides. Ideally, if you could work out a mechanism that would address the federal concerns and still make it statutory, that would be better. In the real world right now, I anticipate that it would be a rather daunting task. You would have to have a commitment by the federal government to the concept. You'd probably have to go to cabinet to get instructions to do it, because the Department of Justice, at last, didn't contemplate an AFN role.
To be very frank with you, I would rather see the bill passed with what we have in terms of appointment right now than face the prospect, if it's going to turn out not to be something that can be achieved by consensus or if there turns out to be a major point of contention, of having the bill held up while we try to write in a joint process and take the risk that we don't end up with a bill.
I think the commitment in the political accord—some people are more cynical than I am about it—is valuable. You have a public commitment by the federal government to engage with AFN on a discreet basis. The remedy, if that does not take place, is that the AFN will publicly complain.
If I'm the federal government and I've just achieved a new bill that is seen as a major step forward and as legitimate and sound and done in partnership, and a few months later I have my partner complaining that I'm not playing fair, I don't think that's a very comfortable situation to be in. It undermines the political legitimacy of what I've just accomplished and it even exposes me to legal challenges.
So I am fairly optimistic that the provisions in the political accord about the engagement will be carried out in good faith. If they're not, there is the remedy of at least AFN's going public—not naming names, but just saying “we were promised this and it's not happening”, and the risk that the federal government will expose itself to legal challenges on the basis that the process will not seem to be providing a fair hearing as per the Canadian Bill of Rights.
With respect to the pool, there are advantages and disadvantages to going outside the pool of sitting judges. The disadvantage is, again, from the point of view of judicial independence. If I'm a Superior Court judge and I am appointed to this job, I'm not getting a new position. I'm still a Superior Court judge and I'm not being paid more than I used to be. If I'm on the outside and am appointed, I'm going to be paid a lot more doing this than I was as a university professor, or whatever else it is I'm doing, and I have a chance to be reappointed. Maybe subconsciously, or maybe in the eyes of some people, that's going to influence the way I act.
So you have a bigger talent pool if you go outside the judges, potentially; you have fewer concerns about independence and the worry that people are subconsciously, or are being seen to be, running for re-election if you're strictly staying inside the pool of sitting judges. I think reasonable people could argue both sides of it.
On the question of limiting the creativity, let's just say that a $100-million judgment has been awarded against the federal government. They could ask, “Where do you want us to send the cheque?” Or they could say: “Maybe there's a solution that works better for both of us: you might want the money, or what you might really want is for us to help you get a parcel of land that we can purchase for less than $100 million; or land for which we can find a way to get it for you and help you negotiate it; we have unoccupied crown land that we can work with you on, and we can designate it as a reserve.” Or maybe there are other alternatives, such as that it would be better for us, the federal government, to engage you in some sort of joint revenue-sharing project or something, rather than pay the $100 million.
Even when an award has been made against a party, it's not necessarily the end of the discussions. It could be the beginning of a new set of discussions: “We didn't take you seriously before; we never thought you'd win. But wait a minute; now we're looking at having to pay you $100 million, so maybe we should sit down to see whether there's something else we could do.”
That won't always happen. Sometimes creative solutions will not be feasible or available, and sometimes it will be “Take out the cheque book and write it”. But I think there will be a number of circumstances in which there will be creative discussions, not only before the award of money damages, but afterwards.
That was the landmark decision by the Supreme Court of Canada that decided that when the federal government mismanages first nations' lands and assets, it can give rise to a legal remedy--that is, a remedy in the courts.
You see, before then there had been a debate: While the federal government had a trustee role, was that just a political trust? If the federal government doesn't behave properly, is it a question of their remedies being purely political? Or can you actually go to court and say that they didn't do this properly, or that they sold the land under value, or that they didn't have our permission to alienate the land, and get a legal judgment.
Guerin was the big breakthrough case. It said, in effect, that a specific claim can be brought in court and lead to a binding legal judgment.
The particular aspect of the Guerin case, which took us about eleven years to sort out, was this: In the Guerin case, Justice Dickson said that a specific claim can arise from a treaty or an agreement or even from a unilateral undertaking.
So the AFN has been trying all along to make sure that for purposes of legislation, like the piece you're studying, it's very clear that all the options are on the table. If the ordinary law of Canada would say that a unilateral undertaking gives rise to a legal obligation, then that kind of specific claim can also be brought under this system. That's not to say that all unilateral undertakings give rise to legal obligations, but if they do, you should be able to access them under this tribunal no less than in the ordinary courts.
Bill C-6 was written in a way that implicitly excluded unilateral undertakings. The new Specific Claims Tribunal Act is written in a way that I think makes it very clear. How could it be clearer? It talks about unilateral undertakings. It makes it absolutely clear that if a unilateral undertaking gives rise in the ordinary law to an obligation, then a specific claim can brought under this new system.
Concern has been expressed about Wewaikum kinds of claims, which occur when the federal government has unilaterally promised to provide reserve land pursuant to a treaty commission. It's my interpretation of the statute that to the extent that the federal government has reached a legal obligation, such as is recognized by the Supreme Court in the Wewaikum case, that kind of claim can be brought before this new tribunal.
It's a very important point, because first nations in British Columbia and other places are very much concerned that their criteria not arbitrarily exclude certain kinds of specific claims.
In the discussions going back eleven years, if you look at the criticism when I was here in front of parliamentary committees criticizing Bill C-6, it was one of the points I made. It's certainly a point we try to be alert to. Just because we participate in the drafting doesn't mean we have privileged status as to how a court is going to interpret it. But for what it's worth, my interpretation, as someone who was involved in it, is that it clearly was drafted in a way that picks up on the idea expressed in the Wewaikum case, which is that if a unilateral undertaking gives rise to a legal obligation in the ordinary courts, it can also be addressed under this statute as a specific claim.