AANO Committee Meeting

38th PARLIAMENT, 1st SESSION

Standing Committee on Aboriginal Affairs and Northern Development

EVIDENCE

CONTENTS

Tuesday, November 15, 2005

¹

1530

The Chair (Mr. Lloyd St. Amand (Brant, Lib.))

Ms. Renée Dupuis (Chief Commissioner, Indian Claims Commission)

¹

1535

The Chair

Mr. Jeremy Harrison (Desnethé—Missinippi—Churchill River, CPC)

Ms. Renée Dupuis

Mr. Jeremy Harrison

Ms. Renée Dupuis

Mr. Jeremy Harrison

Ms. Renée Dupuis

¹

1540

Mr. Jeremy Harrison

Ms. Renée Dupuis

Mr. Jeremy Harrison

Ms. Renée Dupuis

Mr. Jeremy Harrison

Ms. Renée Dupuis

Mr. Jeremy Harrison

Ms. Renée Dupuis

Mr. Jeremy Harrison

Ms. Renée Dupuis

Mr. Jeremy Harrison

The Chair

Mrs. Carol Skelton (Saskatoon—Rosetown—Biggar, CPC)

The Chair

Mr. Bernard Cleary (Louis-Saint-Laurent, BQ)

¹

1545

Ms. Renée Dupuis

Mr. Bernard Cleary

Ms. Renée Dupuis

¹

1550

The Chair

Mr. Bernard Cleary

The Chair

Ms. Renée Dupuis

Mr. Bernard Cleary

Ms. Renée Dupuis

Mr. Bernard Cleary

The Chair

Mr. Roger Valley (Kenora, Lib.)

Ms. Renée Dupuis

¹

1555

Mr. Roger Valley

Ms. Renée Dupuis

Mr. Roger Valley

The Chair

Mrs. Carol Skelton

Ms. Renée Dupuis

º

1600

Mrs. Carol Skelton

Ms. Renée Dupuis

Mrs. Carol Skelton

Ms. Renée Dupuis

Mrs. Carol Skelton

The Chair

Mr. Bernard Cleary

Ms. Renée Dupuis

Mr. Bernard Cleary

º

1605

Ms. Renée Dupuis

Mr. Bernard Cleary

Ms. Renée Dupuis

The Chair

Mr. David Smith (Pontiac, Lib.)

Ms. Renée Dupuis

Mr. David Smith

Ms. Renée Dupuis

Mr. David Smith

Ms. Renée Dupuis

Mr. David Smith

º

1610

Ms. Renée Dupuis

Mr. David Smith

Ms. Renée Dupuis

Mr. David Smith

Ms. Renée Dupuis

Mr. David Smith

Ms. Renée Dupuis

º

1615

Mr. David Smith

The Chair

Mr. Jeremy Harrison

Ms. Renée Dupuis

Mr. Jeremy Harrison

Ms. Renée Dupuis

Mr. Jeremy Harrison

The Chair

Mr. David Smith

º

1620

Ms. Renée Dupuis

Mr. David Smith

Ms. Renée Dupuis

º

1625

The Chair

Mr. Serge Ménard (Marc-Aurèle-Fortin, BQ)

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

º

1630

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

The Chair

Ms. Nancy Karetak-Lindell (Nunavut, Lib.)

Ms. Renée Dupuis

º

1635

Ms. Nancy Karetak-Lindell

The Chair

Hon. Sue Barnes (London West, Lib.)

Ms. Renée Dupuis

Hon. Sue Barnes

Ms. Renée Dupuis

Hon. Sue Barnes

º

1640

Ms. Renée Dupuis

Hon. Sue Barnes

The Chair

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

º

1645

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

Mr. Serge Ménard

Ms. Renée Dupuis

The Chair

Hon. Sue Barnes

Ms. Renée Dupuis

º

1650

Hon. Sue Barnes

Ms. Renée Dupuis

The Chair

Mr. Jim Prentice (Calgary Centre-North, CPC)

º

1655

Ms. Renée Dupuis

Mr. Jim Prentice

Ms. Renée Dupuis

Mr. Jim Prentice

Ms. Renée Dupuis

Mr. Jim Prentice

»

1700

Ms. Renée Dupuis

Mr. Jim Prentice

Ms. Renée Dupuis

Mr. Jim Prentice

Ms. Renée Dupuis

Mr. Jim Prentice

Ms. Renée Dupuis

Mr. Jim Prentice

Ms. Renée Dupuis

The Chair

Hon. Sue Barnes

Ms. Renée Dupuis

Hon. Sue Barnes

Ms. Renée Dupuis

»

1705

Hon. Sue Barnes

The Chair

Ms. Renée Dupuis

The Chair

---

CANADA

Standing Committee on Aboriginal Affairs and Northern Development

---

NUMBER 051

l

1st SESSION

l

38th PARLIAMENT

---

EVIDENCE

Tuesday, November 15, 2005

[Recorded by Electronic Apparatus]

*   *   *

¹  (1530)  

[English]

    The Chair (Mr. Lloyd St. Amand (Brant, Lib.)): Ladies and gentlemen, we'll commence the meeting. We are a little shy of a quorum with respect to votes, but we certainly have a sufficient number to hear witnesses.

    Our witness today has been punctual, and I'd like to accommodate her. With us today is the chief commissioner of the Indian Claims Commission, Renée Dupuis.

    Without further introduction or elaboration, Ms. Dupuis, the floor is yours if you wish to commence your presentation to the committee now.

    Ms. Renée Dupuis (Chief Commissioner, Indian Claims Commission): Good afternoon, Mr. Chair.

[Translation]

    Good afternoon, committee members.

[English]

    Thank you for inviting me here today.

    I have a very brief opening statement, and I will be happy to answer your questions.

    The claims process in Canada has a long history that has been shaped by many events. Similarly, the forces that led to the creation of the Indians Claims Commission began many years ago. In the interests of time, let me begin in 1990.

    As you know, violence erupted in Kanesatake at Oka, Quebec, over a land claim. The federal government responded with a native agenda, including a commitment to accelerate specific claims settlements.

[Translation]

    In 1991, the Indian Specific Claims Commission, known as the Indian Claims Commission, was created by Order in Council as a Commission of Inquiry under the Inquiries Act. In 1992, the Commission's mandate was revised and several additional Commissioners were appointed. Commission work is carried out on the basis of Canada's Specific Claims Policy.

    From 1991 through 2004, the Prime Minister was designated as the appropriate Minister for the ICC for purposes of the Financial Administration Act. In July 2004, that responsibility was assigned to the Minister of Indian and Northern Affairs.

    The ICC currently has five Commissioners, including myself, the Chief Commissioner. I take this opportunity to point out two of our Commissioners who are here today, Alan Holman, from Charlottetown, Prince Edward Island,

[English]

and Commissioner Sheila Purdy, from Ottawa. The staff supporting the commission in its work is professional and hard-working.

    Before the creation of the ICC, first nations were unable to challenge government decisions without going to court. The Indian Claims Commission offers an alternative approach for first nations who desire an independent review of government decisions.

    Our role is to respond to requests that are made after the minister has made a decision to accept or reject a claim. More specifically, our mandate is twofold: first, upon the request of a first nation, to hold a public inquiry to review the minister's decision when either the minister has rejected their claim or the minister has accepted the claim but there is a dispute over how to establish compensation; second, upon mutual agreement of a first nation and the Department of Indian Affairs, to provide mediation support at any stage of the claims process to assist the parties to reach a claim settlement.

    Let me quickly summarize the principles that guide our day-to-day activities.

[Translation]

    The first and most important are independence and impartiality as a quasi-judicial body. These critical principles guide our inquiry processes from the very start right through to our recommendation as to whether or not there is an outstanding obligation due to a First Nation from the Government of Canada.

    With regard to mediations, there are no more important qualities than impartiality and independence as we attempt to bring parties together to reach a satisfactory agreement. Without these qualities, our attempts to mediate would be fruitless.

[English]

    The second principle is fairness and natural justice. Our inquiry process often presents the first opportunity for the parties to meet; the government review of the claim is based solely on documents. An inquiry is a quasi-judicial process, the fairness of which requires appropriate time allotments for parties to make submissions in sequence.

    Our process is community-based. We engage the parties in planning the inquiry, following which staff visit the communities to explain our process and interview elders. The panel then holds a hearing in the community. Finally, the elders' evidence and documentary evidence are the subject of written submissions by counsel for the parties, who then appear to make oral presentations to the panel grounded in the evidence and the law. The panel then deliberates to produce its reports and recommendations.

¹  (1535)  

[Translation]

    Openness and transparency are the third principle. We are committed to operating in an open, transparent manner. We issue reports after each inquiry and mediation, in addition to our annual report. We are authorized as well to issue a report on any matter related to specific claims.

    We communicate through a variety of means including our web site, newsletters, our various reports and through participation at conferences. Perhaps more than most public organizations, we travel to the communities we deal with to ensure that distance is not a barrier to being heard.

[English]

    The fourth and last one is the importance of oral history. We meticulously collect the oral history relevant to an inquiry by visiting the communities in question and listening to the oral testimony of band members, and in particular of band elders.

    If I may say so, we are very proud of this practice at the ICC. Collecting and considering oral testimony represents a unique contribution of the ICC and has benefited both first nations and the Canadian public in general. The Supreme Court of Canada has recognized the importance of according equal weight to oral testimony with any other form of evidence presented to a tribunal.

    Finally, perhaps more philosophically, we see our role as bridging different perspectives. The ICC plays a unique role in Canada as we work between parties with opposing viewpoints during inquiries, and with parties with different perspectives during mediations.

    Despite all our best efforts, different perspectives will continue to characterize the specific claims process in Canada for some time. This concept of bridging will remain critical if we are to make collective progress in the specific claims area.

    In conclusion, we believe the ICC has had significant success since 1991, yet it is clear that serious challenges remain. We strive to ensure that our process has the confidence of all parties.

[Translation]

    I'll be happy to answer your questions. Thank you, Mr. Chairman.

[English]

    The Chair: Thank you, Ms. Dupuis.

    Mr. Harrison.

    Mr. Jeremy Harrison (Desnethé—Missinippi—Churchill River, CPC): Thank you, Mr. Chair.

    Thank you very much to our witness for being here today.

    I would like to get a feel for how many cases the ICC has before it in a year. How many cases would you have before the commission each year?

    Ms. Renée Dupuis: We have presently before us a total of 64 files, namely 40 inquiries and 24 mediations.

    Mr. Jeremy Harrison: How many historically, since 1991, has the ICC disposed of per year?

    Ms. Renée Dupuis: From 1991 to 2005 we have issued 55 inquiry reports and 11 mediation reports.

    Mr. Jeremy Harrison: How has the government responded to these? As I understand it, it's not binding upon the government to accept the recommendations in them. In those cases, has the government accepted all the recommendations, most of them, some of them...?

    Ms. Renée Dupuis: I have the most recent figures for you. Out of the 65 inquiry reports, we have issued a recommendation not to negotiate the claim in seven cases. We issued a recommendation to negotiate the claim that was accepted by the minister in 34 of these instances, and in 18 of these instances, the recommendation we had issued to negotiate was rejected by the minister. If you add to this number six claims and reports that have not yet received a response from the government, you get to the total of 65.

¹  (1540)  

    Mr. Jeremy Harrison: Approximately how long would it take for a case from the time it gets to the ICC's door until there's a recommendation? How long does that take on average?

    Ms. Renée Dupuis: I can tell you that the shortest one would have been two years and the longest one would have been five years. Some of these are very complex, involving many first nations, and some of them are less complex or complicated. What we have seen in the past and up till now is that, depending on the complexity of these claims, it sometimes is easier to get to a final report in a short term.

    Mr. Jeremy Harrison: One question we've been going through, the previous Parliament had dealt with in Bill C-6, which would have instituted a different regime for specific claims. My understanding is that it has been decided by the government that Bill C-6 will not actually be signed into law. It was passed through the last Parliament, but it won't be given royal assent. The parliamentary secretary could correct me on this, but that's what I've been led to understand.

    In the process of Bill C-6 going through Parliament, has there been less emphasis on the ICC? I guess what I'm wondering is whether the ICC has been under-resourced in the last couple of years.

    Ms. Renée Dupuis: To answer the member's question, in the past six fiscal years, including this one, we have doubled our workload. We've gone from 38 files, namely 25 inquiries and 13 mediations in 2000-01, to 64 inquiries and mediations, and because we have doubled that workload, we have asked for additional resources and received them.

    Mr. Jeremy Harrison: Are there currently any vacancies among commissioners?

    Ms. Renée Dupuis: We actually have two commissioner positions vacant.

    Mr. Jeremy Harrison: Out of how many in total?

    Ms. Renée Dupuis: It's a total of seven.

    We're presently five commissioners—actually five part-time commissioners, including myself as part-time chief commissioner.

    Mr. Jeremy Harrison: Right, and of course my colleague Mr. Prentice has been a commissioner of the ICC. How long have those two positions been unfilled?

    Ms. Renée Dupuis: One became vacant with the resignation of the former chief commissioner; that was in June 2003. The other one became vacant in August of the same year, 2003.

    Mr. Jeremy Harrison: So these positions have been vacant now for over two years. The fact that two out of seven commissioner positions are not filled would I think probably lead us to believe this would perhaps be a reason for things not taking less time. I know you wouldn't be in a position to ask why the government hasn't filled those positions, but I think it's probably a question that's on many people's minds.

    I don't really have any more questions, Mr. Chair, in this round. Send it along.

    The Chair: There is still time, if Ms. Skelton wishes to use the time. There will undoubtedly be another round.

    Mrs. Carol Skelton (Saskatoon—Rosetown—Biggar, CPC): I'm sorry, I walked in a few minutes late and I just want to go over the briefing notes. Thank you.

    The Chair: Fair enough.

    Mr. Cleary, please, then.

[Translation]

    Mr. Bernard Cleary (Louis-Saint-Laurent, BQ): Good afternoon, Ms. Dupuis. I've had the opportunity to meet you on a number of occasions. It's always a great pleasure for me to see you again.

    As you are no doubt aware, I worked on a tribal council file when the Commission was just starting. It was the Attikamek-Montagnais Council. There was considerable insistence at the time that the Commission be entirely independent from the government. It goes without saying that, like everyone, I realized that hadn't been the case. I further observed that the Royal Commission had also wanted it to be independent. I know that, in the context of virtually all its reports, your Commission has asked the government that it be independent.

    On this point, I'd like to know why you think the government doesn't support this notion of independence. I'd also like to know why you defend this notion in virtually all your reports and, lastly, why you get a negative response.

¹  (1545)  

    Ms. Renée Dupuis: As regards the Commission's independence, I'd like to take a brief look back. In 1991, the government decided to establish a commission of inquiry. In theory, when it creates a commission of inquiry, the government establishes a temporary mechanism. However, our Commission has been operating as a temporary solution for 14 years.

    I joined the Commission in 2000 as a commissioner and became Chief Commissioner in 2003. In the 1990s, from the Commission's inception, we drew the government's attention, in a number of our annual reports, to the need to create a permanent and independent organization that would review all specific claims. Making recommendations to the government is part of our mandate. The Commission has never stopped stating that an independent and permanent body should be created.

    Having said that, I can say that, under its status as a federal commission of inquiry established by order in council, the Commission has managed thus far to operate independently. We have managed to assure the parties that appear, both First Nations and the Canadian government, that we are able to conduct investigations and mediations without outside pressure or interference.

    Then you asked me why I thought the government didn't support this notion of independence. I'm not necessarily the best person to answer that question. I know the government representatives are in a better position to do so than I.

    Mr. Bernard Cleary: Since the Commission constantly repeats its request, I conclude this independence would have certain benefits. What would those benefits be? Do the directives given you by the government limit your role? What would that independence change for you?

    Ms. Renée Dupuis: In fact, although the commission of inquiry operates under a government order and under the authority of the Inquiries Act, its position is similar to that of certain tribunals that have a jurisdiction and deal with the fact that they have to maintain relations with the government. Certain specialized administrative tribunals are in a situation similar to ours. The fact that they are part of the portfolio of a specific department does not prevent them — and we think this is our case as well — from carrying out their mandate in a manner entirely independent of government.

    In the context of our inquiries, we have to hear the views of the First Nations as well as the position of Canada. We also have to ensure we are neutral and impartial, both in the way in which we receive what is presented to us and in the way we make our recommendations.

¹  (1550)  

[English]

    The Chair: You have about 30 seconds, Mr. Cleary.

[Translation]

    Mr. Bernard Cleary: Here's my final question. All specific claims should be handled outside the Department of Indian and Northern Affairs. That department is both judge and party at the Department of Justice.

    Do you think the Commission could have a comprehensive mandate in the case of specific claims?

[English]

    The Chair: A very brief answer, Ms. Dupuis, if you wish to answer.

[Translation]

    Ms. Renée Dupuis: Yes.

    Mr. Bernard Cleary: What does your “yes” apply to?

    Ms. Renée Dupuis: I'm answering yes to your question.

    Mr. Bernard Cleary: All right.

[English]

    The Chair: Thank you.

    Mr. Valley.

    Mr. Roger Valley (Kenora, Lib.): Thank you, Ms. Dupuis, for coming today and sharing some of your thoughts.

    I'm intrigued by some of the statements in your opening comments and some of the aspects of how you gather your information. That's what I'd like to explore with you.

    You talk quite a bit, in fact--it's mentioned several times--about the information you gather from the elders and the evidence and the documentary evidence. On page 3, you point out that it's equally weighted on the value that can be put into oral submissions.

    I've spent an awful lot of time on it myself, and one of the reasons I'm here is my success in dealing with elders in first nations communities. I have 38 reserves in my riding. I have a lot of involvement with them. I know the challenges, and it takes a special ability to have the time and to have the discussions so that you can get the information out of the elders.

    It's a sharing, really. It's not really asking them direct questions and they respond. If they're comfortable with you and if they're confident they can be treated respectfully, they'll share with you. It's quite a procedure to go through, and I always find it extremely rewarding when I have the time to make sure those conversations happen.

    You talk about the elders' evidence and the documentary evidence and it's equally weighted, but what happens when it conflicts? I imagine that happens a certain number of times, because elders from communities can have different opinions. They can have different communities involved in claims. From your experience, I would like to explore what happens when these issues come up and there's different evidence given.

    Another thing I would like to know is how do you have the training involved, to have people who are prepared and have the time and understand the best way to have discussions with elders? I'm wondering how you do that, from your experience.

    Ms. Renée Dupuis: I would certainly say that it is a challenge. We have put in place in our inquiry process means to make sure that we know in advance what the community we're dealing with is. When I referred to the staff visit, this meant that we have one of our lawyers we call liaison people go to the community, meet with the people, meet with the witnesses, and take what we call “will say”. They go through what is actually the issue, what we need to hear from these band members or elders at the hearing, and what the panel will be looking for in terms of evidence.

    Because in the first instance the process within DIAND is a paper process, we find ourselves in a position...there are gaps in the documents. These are old claims, such as a treaty signed in 1899 in northern Saskatchewan with not necessarily a lot of evidence on what was actually said when it was signed, so we have to complete what is in the documents and try to fill the gaps. That is one of the purposes of getting to the community and hearing from the people.

    But we also want to hear from them because we want to hear their view of what happened, their view of the story, and that is why we insist that this be at the core of our inquiry process. It is time-consuming, but we think it is worth it in the sense that often we will find ourselves in a hearing and it's the first time band members, community members and elders, hear each other's position. We'll hear what elders have to say and sometimes it will lead to a reconsideration of the claim, plus there's the fact that we find it's extremely important to collect this evidence.

    The reason we alluded to that Supreme Court of Canada decision is that since the Supreme Court of Canada said in 1997 that this is a very important means of evidence and it should be given equal weight to any other form of evidence, we think it's a very important part of our process.

    It's difficult, but you know, my experience from chairing some of these inquiries has been that we often see people coming to us who are very open because it's the first time they've actually had the opportunity to state their story and to state their view of what happened.

    Then how do you assess the credibility of the witness? It's no different from what any other member in a similar position in a tribunal has to do, let's say, but it's difficult. It certainly is difficult.

¹  (1555)  

    Mr. Roger Valley: As I mentioned, one of the beauties of oral history is that it requires someone to listen. Too often that doesn't happen, and that's why I was intrigued on actually how much time this takes. We know a lot of these processes take an awfully long time, but I'm glad to hear that we have the time to actually listen, because it's important.

    I am just curious about something I asked--or I meant to ask and maybe didn't. How does the training happen? You mentioned a liaison person. Is the liaison person from the area, from the community, or from your office? It's because all the information we get is only as good as the people we send in there to ask the questions and participate with the community, so I think it's important. I would personally like to know how you find that person, because if you took 10 people off the street, you'd have trouble finding one in 10 who has the ability to listen and to really interact with the community to provide the quality information.

    Ms. Renée Dupuis: I'm glad to say that we have the privilege of having very dedicated people working within our staff, people who are very experienced and who are aboriginal themselves. Actually, our director of liaison is an aboriginal person herself, and I would say that all staff in liaison are aboriginal people. So you can imagine, we rely a lot on their own knowledge of aboriginal communities for the way to approach the communities and get the information.

    And when I say it's a challenge, I mean it's challenging because more and more first nations are concerned about sharing information on their population, their conditions of living, with outside people. But I must say we succeed in getting that information, thanks to the good people who work with us.

    Mr. Roger Valley: Thank you.

    The Chair: Ms. Skelton.

    Mrs. Carol Skelton: Ms. Dupuis, I'm sorry I got in late for your presentation.

    In your conclusion, you talked about it being clear that there are serious challenges remaining. Can you give me the top three challenges you're meeting everyday in your position? Is that possible?

    Ms. Renée Dupuis: I'll name three and determine at the end. The first one is the top priority, but let me go on with what I just said.

    Oral history evidence is crucial in trying to fill gaps in these claims, in these inquiries. We're at the end of a process. We need to hear from elders. We need to preserve evidence, not lose evidence. So timing is certainly an issue.

    Certainly another top challenge is keeping the confidence of the people with whom we deal, that we are impartial and neutral in this process. It is a challenge—be it Canada, be it first nations.

    I would say on the longer term, it is making a contribution in this very sensitive and difficult human rights issue and rights issue. We're often seen as taking care of moral obligations, while we are dealing with rights, legal obligations. Was there a right violated? Was there a treaty respected or not? So we're dealing with rights issues. It's always a challenge to make people understand. That's why we're trying to help educate the Canadian public in general to this very fact: that we're dealing with rights and not only moral obligations.

º  (1600)  

    Mrs. Carol Skelton: I sense from the way you spoke that you're having a challenge doing that. Do you feel that challenge continually?

    Ms. Renée Dupuis: I certainly think it is, even in the ideal situation. If we were thinking, how could we be put in an ideal situation, I think it would remain a challenge.

    Mrs. Carol Skelton: When you spoke about the timing, to me you meant that as the elders get older, we're losing them, and we're losing the oral history. Is that what you meant when you said “timing”?

    Ms. Renée Dupuis: Yes.

    Mrs. Carol Skelton: Thank you.

    Mr. Chairman, I have no more questions.

    The Chair: Thank you, Ms. Skelton.

    Mr. Cleary.

[Translation]

    Mr. Bernard Cleary: In November 2003, Parliament passed legislation concerning the settlement of specific claims. However, the government never implemented that act. You must have enquired as to the reasons for that state of affairs. What do you think they are?

    Ms. Renée Dupuis: We were informed that the act wouldn't be implemented for the moment. So we have to continue conducting inquiries and trying to provide mediation services. We're sticking to our mandate. We have no specific explanation from the government. Whatever the case may be, we were informed of that decision.

    Mr. Bernard Cleary: What exactly did that act say?

º  (1605)  

    Ms. Renée Dupuis: The government had decided to introduce a bill to establish a centre to handle all specific claims. That centre would be an umbrella organization and would consist of a mediation commission on the one hand and a tribunal on the other.

    From what we understood, the general idea would be to try to resolve complaints and claims through mediation. In cases where mediation would result in no settlement, the Commission would have the power to refer those cases to the tribunal. The tribunal, which would be specialized, would render a decision as to the claim's validity.

    Mr. Bernard Cleary: Was the Commission in favour of that act?

    Ms. Renée Dupuis: We submitted a few ideas for consideration to the House of Commons committee and that of the Senate. We addressed these questions again in our 2002-2003 Annual Report. In the main, we suggested that committee members examine the bill based on eight principles of administrative law. We have always recommended that the government establish a permanent, independent body. Under the bill, a body would be created. However, we feel a few aspects of the bill would cause problems. We wanted to draw the attention of the members of both parliamentary committees to some of them.

    We stated the principle that that bill should confirm access to justice. Among other things, we said that a First Nation should have reasonable access to justice and that, in that perspective, setting a limit of $10 million in the bill could be a problem. Here we can cite, as an example, the fact that a First Nation doesn't have access to all funding resources in order to assert its claim.

[English]

    The Chair: I don't know if it's Ms. Barnes or Ms. Karetak-Lindell who wishes to....

    Oh, it's Mr. Smith.

[Translation]

    Mr. David Smith (Pontiac, Lib.): Thank you, Mr. Chairman.

    Thank you very much for being with us this afternoon, Ms. Dupuis.

    My colleague opposite asked you earlier how many commissioners are currently sitting on the Commission? You said there were five out of a total of seven positions. You mentioned that two positions had been vacant since 2003. I imagine those positions are filled by the minister. Is that correct?

    Ms. Renée Dupuis: The people who occupy those positions are appointed by government order.

    Mr. David Smith: This is an Aboriginal commission here. So I'd like to know how many commissioners are Aboriginal.

    Ms. Renée Dupuis: Aboriginal and non-Aboriginal representation has varied over the years. Until 2003, the two vacant positions were filled by Aboriginals. Right now, one of the commissioners is Aboriginal and the other four, including myself, are non-Aboriginals.

    Mr. David Smith: According to your presentation, in 2005 and 2006, you intend to focus on 64 cases, that is 40 inquiries and 24 mediations. Did I understand correctly?

    Ms. Renée Dupuis: Yes.

    Mr. David Smith: The figures for 2004-2005 are virtually the same: 43 and 21. You said earlier that it took an average of two to five days to complete a case. Here we have figures that cover five years, from 2000 to 2005.

    How many cases a year, on average, do you manage to handle or complete? How many cases have been completed, completely settled? I'm talking about cases that are consistent with your observations and your position, and that have been referred to the minister.

º  (1610)  

    Ms. Renée Dupuis: The number has varied over the years. In recent years, however, it was generally three or four inquiry reports, and as many in mediation cases.

    Mr. David Smith: If I understand correctly, six to eight completed cases a year were ready for decision? It's the current government or minister that makes those decisions. Is that correct?

    Ms. Renée Dupuis: It's correct in the case of inquiries. However, when a mediation is completed, that generally means that there's been an agreement between the government and the First Nation. The file is then closed for the government as well. In inquiry cases, we issue our recommendation, then the case follows its course in the government.

    Mr. David Smith: Based on your figures, an average of 10 to 12 percent of cases are settled, or waiting for the minister to decide whether the investigation is warranted and whether he agrees.

    I'm here for the Aboriginal peoples. Elders are our memory, and unfortunately they will be leaving us. If we settle 10 or 12 percent of 64 cases, that means only six or eight cases.

    Is the process too complex? Is staff lacking? I'm convinced that everyone involved is dedicated to the cause and that they all want to settle as many cases as possible, but that takes resources.

    Why are only 10 or 12 percent of cases completed? I'm not criticizing you, but wouldn't there be a way of increasing that number to 25, 30 or 40 percent? This is a legitimate question because people tell us that settlements take a lot of time. Being on the outside, it's easy for me to observe the situation. The percentage of cases settled is low, but I can at least understand that the process is complicated.

    In your view, would there be some way of simplifying the process in order to speed it up and settle certain cases more quickly?

    Ms. Renée Dupuis: I do believe there are ways of speeding up matters, but does your question concern the Commission process or the process that precedes it? Cases come to the Commission at the end of a lengthy process.

    Mr. David Smith: Before its file gets to you, a First Nation will have tried other remedies without reaching an agreement. If I understand correctly, the Commission is an independent entity with which a band council files an application after first trying to reach an agreement with the department.

    Ms. Renée Dupuis: Indeed, for example, we receive the investigation request from a First Nation whose claim has been denied. Or its claim has been accepted, but the department and it disagree on the basis on which the negotiation should be conducted.

    Consequently, files that come to us are generally the toughest and most complex ones. For example, there is still disagreement after a study has been conducted, research has been developed by a First Nation or research has been conducted by Canada. In the end, the complaint is dismissed and the case comes to us after a lengthy process.

    The Commission is a review mechanism. So we redo the process from scratch: we review the entire file again, we add the information gathering phase and we hear testimony. If all that were done at the first level, delays would already be reduced. For example, if the research were done jointly at the outset, if evidence were gathered from the Elders at the start, we'd be able to avoid redoing part of the research. This is a factor that could speed up or simplify the process.

º  (1615)  

    Mr. David Smith: When you say “at the outset”, does that involve the minister and you?

[English]

    The Chair: There will be another opportunity, Mr. Smith. We've exceeded your time already.

    Mr. Harrison.

    Mr. Jeremy Harrison: Thank you, Mr. Chair.

    I don't have a long question. I'm going to read a quote from the annual report of the ICC. It refers to “...inordinate delays in following up on commission recommendations and its refusal to provide research funding to assist First Nations claimants...”--and that's with respect to the government--and “the excessive amount of time taken by Canada to consider a number of claims–-claims which were then accepted for inquiry by the Commission on the basis that the delay amounted to rejection of the claims...”.

    Of course we know, Mr. Chair, that one of the principles of fundamental justice is the right to a speedy trial, in a criminal sense. But in the sense of a tribunal, it's a very important principle as well.

    I'm wondering, Ms. Dupuis, if you could maybe expand on and give us some background on the reason those were included in the annual report from the ICC.

    Ms. Renée Dupuis: May I ask in which report...? Would you know where they have that reference?

    Mr. Jeremy Harrison: I think it was from the annual report of the ICC. I'm not sure if it was this year or last year.

    Ms. Renée Dupuis: A number of times we have made recommendations to, in our view, improve the actual system. In some cases we have said more resources should be given to the Department of Justice and the Department of Indian Affairs in order to accelerate, if we are in our own process, waiting for a review of a legal opinion. I think you have heard from other witnesses that there are time concerns in the justice department. We have also said that we recommend that there be an inventory of all outstanding claims in the system so we could do some analysis of what the most important principles are that we have learned from applying this policy for 20 years, 25 years, and now 30 years. We still think it would be worth trying to be more systematic in the way we deal with these group claims.

    We also have suggested to government more resources and trying to develop, if I may put it this way, administrative jurisprudence on how we have dealt with these things in the past. That is the kind of recommendation we have come with to bring our contribution to the government's reflection on how the actual system could be improved.

    Mr. Jeremy Harrison: Thank you.

    The Chair: Mr. Smith, I cut you off, so....

[Translation]

    Mr. David Smith: Ms. Dupuis, I'm not a legal person; I'm not a lawyer. A number of my colleagues around this table are lawyers. I'm an administrator, so I'm interested in figures. Going back to the 10 or 12 percent, if you did a statistical exercise and decided you had to settle 50 cases a year, you'd come to the conclusion that you'd need 250 people to do that, since you have 51 employees right now. That makes no sense, and that wouldn't satisfy the logical side of the brain. However, we have to change something in this process. You've been around since 2001. In your opinion, without affecting the quality of the exercise, can we make some changes in order to simplify the process and submit proposals to the government or to the current minister for them to make a decision?

º  (1620)  

    Ms. Renée Dupuis: One factor that I think is extremely important for improving the system in its current context is to determine the precedents, factors and principles that have been applied for the past 30 years and that have led to the settlement of a certain number of complaints. Let's not forget that this was originally a policy designed to settle specific claims. Each of those complaints or claims must be re-examined in light of those principles.

    This isn't about granting both parties a fair trial. However, we can very well try to establish principles, as is done in jurisprudence. Let's take the example of treaty property rights claims. A First Nation may have signed a treaty in Saskatchewan in 1899. At that time, it was entitled to a certain number of miles per family, but a number of principles have been developed in Saskatchewan over the past 30 years. There was even a tripartite agreement between Saskatchewan, Canada and a group of 27 First Nations.

    There are lessons to be learned from these experiences. Principles can be derived from this. In light of these principles, we can review all the complaints and claims currently in the system. That's one solution. Furthermore, at the time, the choice was made to proceed by negotiation. Under the current policy, and since the Calder decision in 1973, we've been told that there are Aboriginal rights in Canada. The government has chosen to settle claims by negotiation rather than arguing them before the courts.

    At the very start of the process, through mediation and facilitation, the parties could jointly clarify the issue of the negotiation, instead of realizing at the very end that such and such a factor was in dispute. In other words, we could establish through mediation the real issues of the claim by a group from Saskatchewan, Alberta or Quebec.

    The departments concerned need more resources. More resources must be granted, now that you know that our society hasn't met some of its obligations and that sooner or later we'll have to correct or compensate for this situation.

    Mr. David Smith: You mentioned other departments. One lady from the Department of Justice explained to us why more resources were required. Going back to my 64 files, I find what you say about corporate memory very interesting: using the past to try to settle certain present and future cases. Is something preventing you from taking that tack?

    Ms. Renée Dupuis: We currently have no grounds for denying the request of a First Nation whose claim has been dismissed by the minister. Our mandate is to inquire as to whether it requires a full investigation of its case. We couldn't respond, for example, that we think the matter is entirely settled, since it was resolved by agreements in Saskatchewan. We make recommendations to the government. We're required to act in the present context, which is very specific. If Canada or a First Nation were to submit a request to us for mediation in order to facilitate their talks, we also wouldn't have the necessary authority to tell them on what basis, or based on what settlement, they have to negotiate. We're here to facilitate a settlement between two parties that decide their issues on their own.

º  (1625)  

[English]

    The Chair: Monsieur Ménard.

[Translation]

    Mr. Serge Ménard (Marc-Aurèle-Fortin, BQ): Ms. Dupuis, before we started the meeting, you told me that I would understand everything about specific claims after your presentation. I admit I still find it hard to see where you fit into the process that has been explained to us during other meetings. I come from the outside, and I'm not familiar with this kind of problem. Of course, I'm sitting with people who seem to have been familiar with it for years.

    Given what we were told at previous meetings, I understand what specific claims are as compared to general claims. Ms. Bartolini explained to us that, originally, when an Indian group wanted to make a claim, the government spent a certain amount of time with its representatives in order to establish that claim. A legal opinion first had to be requested, and that's where the delays were longer. You had to expect that that would take about five years. The first process could take up to two years, but it generally took five or six months. The legal opinion stage could take up to five years. It sometimes took up to two years just to find a lawyer to take on the case.

    Then, if the claim was accepted, the parties went through mediation or a form of conciliation in order to determine the remedy for the wrong that the Indian group that filed the claim had raised.

    Where do you stand in this process? What have I misunderstood about the process?

    Ms. Renée Dupuis: Mr. Chairman, I'd like to clarify my thinking, and I'm going to try to do that as clearly as possible. I wanted to ensure that committee members understood not specific claims, but how the Commission operates. I'd like my mission to be to make you understand specific claims completely.

    As for the Commission, I'll repeat what I said. The Commission is a commission of inquiry whose mandate is to review the decisions made by a minister. It is a kind of review mechanism constituted as a commission of inquiry, which, after conducting a public inquiry into a request that is made to it, reviews a decision by the minister at the request of a First Nation, where its claim has been dismissed by the minister or, if it has been accepted, where it does not agree on the basis of settlement or on the compensation principle proposed by the minister in order to settle its claim.

    We are thus a commission of inquiry structure that reviews a decision and which ultimately submits a report and recommendation to the minister, stating whether, in its judgment, it finds that a legal obligation of Canada to a First Nation has not been met. That's it for the inquiry part.

    Mr. Serge Ménard: So you come into the picture a very long time after the claim has been made, at the end of what's already a very long process.

    Ms. Renée Dupuis: That's why I say we come in at the end of a process.

    Mr. Serge Ménard: You seem reluctant to use the word “review”. I understand you because you're a lawyer. Ultimately, compared to the review process, even in administrative law, your power is not a decision-making power. It's a power of recommendation. The minister may accept your recommendations, just as he may not accept them.

º  (1630)  

    Ms. Renée Dupuis: That's correct.

    Mr. Serge Ménard: All right, I understand.

    Now you hang on to the word “independent”. Judges are ordinarily said to be independent because they are appointed for life or during good behaviour and, consequently, don't have to fear that their term won't be renewed if the government isn't pleased with their decisions.

    What guarantees your independence?

    Ms. Renée Dupuis: We're like all administrative review mechanisms whose mandate, to a certain degree, does not guarantee them the same criteria of independence as judges, in the judicial context. I believe this is a known administrative law context, which puts greater pressure on those who exercise this power to maintain the independence of their work and, in our case, the impartiality of our work.

    Mr. Serge Ménard: If I understand correctly, your organization is separate from the government. You're not part of the government. You're not part of the public service.

    Ms. Renée Dupuis: No, we're not part of the public service. The commissioners and employees are not part of the public service.

    Mr. Serge Ménard: You're appointed for a fixed term.

    Ms. Renée Dupuis: We're appointed for an indeterminate term.

    Mr. Serge Ménard: Indeterminate, you say?

    Ms. Renée Dupuis: Yes.

    The Chair: Thank you, Mr. Ménard.

[English]

    Ms. Karetak-Lindell.

    Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you, Mr. Chair.

    In the other presentations that we had, I think some of the questions coming from the Conservatives made it seem like it was not a good alternative doing the process before the Indian Claims Commission, that it was on a par to going to court. I wonder if you could comment on that.

    Plus, some of the witnesses that we heard talked a lot about the provincial role and the difficulty of settling some of the claims when there are so many parties, especially with two levels of government involved. I wonder how much of a role that plays in settling some of the issues before you.

    Lastly, I'm very interested in the cases that go back to pre-Confederation times, and how different those are from the more recent cases, and how you deal with them. Some of the comments we heard from some witnesses were that they would prefer that a pre-Confederation issue be totally the responsibility of the federal government, and that the federal government should go to the provincial government afterwards to settle separately with that provincial government.

    I'm wondering what your comments would be on those.

    Ms. Renée Dupuis: I'll start with your last question, and maybe make the link with the second question, because it plays a role.

    The provincial involvement and participation in settling specific claims is an issue. From our perspective, it is certainly an issue. It has to do not only with pre-Confederation claims where the provinces were created. I don't want to get into a very legal discussion on fiduciary obligations, but as the members of the committee are aware, there was at least one court case that stated that there was a federal fiduciary obligation and there was also the possibility of a provincial fiduciary obligation. So there is that aspect of it.

    There is also a pre-Confederation meaning. Who is going to pay for events that took place before the actual federal system, and who will be liable for, say, Ontario's or Quebec's benefits or advantages by taking the lands pre-Confederation? I alluded earlier to the Saskatchewan tripartite agreement, whereby the Province of Saskatchewan agreed to provide lands and moneys, and it's cost-shared by the federal government and the province. So there are legal principles that add to the complexity of the cases that come before us, certainly.

    There is added complexity because of the fact that the federal government has been responsible for aboriginal affairs since 1867, has developed expertise, links with aboriginal peoples and so on, which is not necessarily the case for the provinces. Actually, some provinces would question why they would be involved at all in settling claims. So the provincial role and the provincial participation adds to the difficulty, adds to the process, adds to the time needed to come to a conclusion of these claims.

    Indeed, we have said in the annual report concerning Bill C-6 that we thought any new instance created to deal with specific claims should ensure the primacy of the fiduciary relationship between first nations and the federal crown. We said at the time that we were concerned that this constitutional principle may be in danger of being compromised by transferring responsibility for some elements of claims to provincial governments and in our perspective that would diminish the federal responsibilities.

    For your first question, about being or not being a good alternative to the courts, what I can tell you is that we have been told by the parties before us, the first nations who came before us, that although it was time-consuming and coming at the end of a very, very long process, they felt it was a valuable process, that they had a fair hearing, they had the opportunity to meet face-to-face with Canada and they had a further opportunity to make their case known and present themselves and their view of the story.

º  (1635)  

    Ms. Nancy Karetak-Lindell: Thank you.

    The Chair: Thank you, Ms. Karetak-Lindell.

    There is nobody from the Conservative Party. Is there anybody further from the government side?

    Ms. Barnes.

    Hon. Sue Barnes (London West, Lib.): A short question.

    On reading your report—and I see your presentation and thank you for that today, and you're certainly welcome at this committee—I wanted to ask you, has there ever been a time in the last five or six years that the ISCC has expended the total budget allocated to it?

    Ms. Renée Dupuis: We almost did last year, but indeed we did not. So indeed there was a lapse in all the years in the history of this commission except.... I think I should check exactly. I think there was one year when there was a little deficit, but apart from that, in the history of the commission in almost all years there was a lapse in the budget.

    Hon. Sue Barnes: You've never expended all the resources allocated at this point in time.

    Ms. Renée Dupuis: I may have to check. If I may, Mr. Chair, I would prefer to check. I think I recall one year of a small deficit.

    Hon. Sue Barnes: Yes, perhaps in the near future you could just send that in to the clerk.

º  (1640)  

    Ms. Renée Dupuis: We can make sure that you'll have the information this week.

    Hon. Sue Barnes: Okay, thank you very much. I think that's all I wanted to clarify at this point.

    The Chair: Mr. Ménard.

[Translation]

    Mr. Serge Ménard: I'd like you to explain to me how you gather testimony from Elders. Are they sworn? Are they examined? Are there government and band representatives? I get the impression it's not always... I'll let you make the necessary distinctions.

    Ms. Renée Dupuis: I spoke about the visit conducted by Commission staff which is a preparatory visit for the public hearing in the community. Commission staff members meet with community representatives and those that the community has appointed as its witnesses. At that first meeting, our lawyer speaks with those witnesses. This, in a way, is a preliminary examination of witnesses so that we can draft minutes of that meeting and of the subjects that those witnesses are to cover, and those minutes are submitted to the Government of Canada. Our lawyer and members of our staff meet the witnesses in the community. Once the minutes are prepared, we send them to the Government of Canada, which is then in a position to see what items the testimony will concern.

    Generally, a three-person board of inquiry will conduct the hearing in the community. At this stage, the community witnesses are examined by the Commission's counsel in the presence of Canada's counsel and a representative of the Department of Indian and Northern Affairs Canada. Ultimately, this is a public hearing in the community. The hearing is frequently held at a school, and the students are invited to attend it because they're doing homework on the history of their community. It's made sure that they're present.

    Our counsel puts questions to the witnesses from the community, from the First Nation. The members of the board of inquiry can also put their questions directly to the witnesses. Then there's a meeting or discussion between counsel for the First Nation, those for Canada and our lawyer to see whether they have any questions four our counsel to ask or information to present to the witnesses. Our counsel puts all the questions to the witnesses. First he asks his own questions, then those that have been asked by Canada or by the First Nation. We do not allow any cross-examination of the witnesses at the public hearing. In addition, if, for one reason or another, one of the two parties wants to submit expert testimony or have experts heard, we allow cross-examination.

    Mr. Serge Ménard: It surely must happen that some of these Elders die between the time they're questioned by Commission counsel and the time the Commission sits. In that case, do the minutes that have been prepared constitute evidence?

    Ms. Renée Dupuis: Sometimes the First Nation file in evidence before the Commission affidavits that have been received from a witness or Elder of the community who has died and who would normally have been heard by our Commission. There may also be affidavits that were filed in other proceedings involving the First Nation on similar matters.

    Mr. Serge Ménard: Yes, but you said that, at the first stage, the Commission's counsel goes and meets potential witnesses and prepares minutes of that examination, which he then sends to the department. I imagine that he does that so that the department can prepare for the Commission's public hearing.

º  (1645)  

    Ms. Renée Dupuis: Yes.

    Mr. Serge Ménard: That no doubt takes a certain amount of time. Since you deal with Elders, I imagine that, from time to time, it naturally occurs that one of them cannot appear before the Commission later. Will those minutes be entered into the record as evidence of their content?

    Ms. Renée Dupuis: The minutes will be filed in any case, but I don't remember any situation exactly like the one you describe, in that minutes will already have been prepared and the person will be dead.

    It has happened that the declining health of these individuals has prevented them from travelling. In those cases, the committee has travelled with the counsel for Canada and for the parties in order to hear that person where he is.

    Mr. Serge Ménard: I conclude that there must not be a long delay between the time the counsel must question the witnesses and the Commission's hearings. This is simply an exploratory meeting before the Commission's hearing.

    Ms. Renée Dupuis: Yes. As you say, we try to ensure that the time between that exploratory visit and our hearing is very short.

    Mr. Serge Ménard: I have one final question to ask. Do I have enough time? It's essential.

    What strikes us most is the length of the delays. Do you have an opinion on how we could shorten the delays before a claim is put before your Commission?

    Ms. Renée Dupuis: At the risk of repeating myself, I'd say that a certain number of measures could be put in place. As we said, there could be more mediation from the outset or more resources in the present system. Then we could try to learn the principles that have been developed and to apply them systematically. This covers three areas where we think there would definitely be ways of improving the system.

    Mr. Serge Ménard: What's preventing that from happening? It seems that we've been thinking about this for some time, at least according to what we've been told.

    Ms. Renée Dupuis: Mr. Chairman, I wouldn't want to be disrespectful to the committee, but I'm not sure it is up to me to answer that question at this time.

[English]

    The Chair: Thank you, Ms. Dupuis.

    Ms. Barnes.

    Hon. Sue Barnes: Thank you very much.

    I'd like to ask the witness how the ISCC assigns priority to its inquiries. You obviously have a number in line. Is there some sorting at your end, or is this done by the first in? How do you go about choosing?

    Ms. Renée Dupuis: We usually deal with requests as they come in, but in the course of the process we identify priorities. Part of the delay does not depend on us. If we have an election coming in that community once we have set a staff visit, obviously the first nation will ask us to delay the staff visit, so we delay our process.

    If the parties agree in discussing the issues.... At the outset we discuss issues. We ask first nations in Canada what they want the issues in the inquiry to be. If, in discussing this, they realize that there may be a need for more analysis or more research, and we then conclude that we favour joint research, we then have to divert this claim to wait for that. We then put an inquiry on hold.

    We try to balance the part of the process where we can accelerate. As part of the process, at the outset of the process, we are interacting with the parties--staff visits, defining issues, hearing arguments. The later stage of the process is the deliberation of panels and report writing. We try to balance it, depending on which inquiries move faster, partly--I'm not saying totally--because of what we have faced in the course of that inquiry.

    What I mean is that delaying one claim is not necessarily just taking too much time. We have to take into account the fact that we're operating at the request of a first nation. If we have a request to put a claim on hold, we have limited power to say no to that request.

º  (1650)  

    Hon. Sue Barnes: Can you just expand? Obviously, it would be very rare in a court situation to visit a community. Are you doing that fairly frequently? How frequently is that done in these cases?

    How often and for what duration would you, in a normal situation, go into the community to take evidence? And how beneficial is that, in your opinion, to the process?

    Ms. Renée Dupuis: It depends on the number of witnesses. In some cases we will have five elders before us; in others, we will have twenty. So a staff visit may mean one or two days of interviewing elders.

    At the hearings.... For example, in the most recent inquiry I was chairing we had four parallel inquiries with two competing first nations. There were two community sessions, two days in one community and three days in the other. Then we got a request for intervention from seven other first nations, so we had a hearing on this request for intervention. In this case, it would have been five hearing days in the communities, plus hearings for legal arguments.

    In other cases--I'm thinking of another one--it will be one first nation, a first set of hearings or community sessions, three days, plus a second set of five days. So it varies with the complexity of the issues, but usually we find it's very valuable for many reasons.

    I think I can say, and I'm glad to be able to say, we have dedicated commissioners. People expect to see Ottawa civil servants. They get commissioners, part-time commissioners, Canadians from P.E.I., from Saskatchewan, from Quebec City, from Ottawa, listening to their case. People appreciate the opportunity to make their story known, to make their views of the story known.

    People appreciate but sometimes find it very difficult to be sitting in a room where they hear Canada's counsel say they have no right at all. But it's their first opportunity to meet face to face with Canada and to see that they are people working for Canada, and they make this statement in front of us.

    We think it's very valuable, and I've made a list of all the members of this committee with all the inquiries you have in your own ridings. It gives us a sense of what it is to have a claim in northern Saskatchewan, southern Alberta, but also spending some days in Lethbridge or Prince Albert and getting a sense of what these complex issues are.

    The Chair: Thank you, Ms. Barnes.

    Mr. Prentice.

[Translation]

    Mr. Jim Prentice (Calgary Centre-North, CPC): Ms. Dupuis, I'm delighted to meet you. I'm going to express my ideas and ask my questions in English.

[English]

    First of all, welcome and thank you for all the wonderful work you've done with the commission since you've become the chief commissioner.

    I note that you also have two of your distinguished colleagues with you. Welcome to them as well. I see Anne Chalmers here also today, who has been with the commission from its outset.

    If I might just take you to the heart of the matter, the committee has become involved in the whole question of specific claims because our understanding is that Bill C-6 has, for all intents and purposes, been ripped up by the government and that the government has assured, at least the AFN, that it will not be proceeding with Bill C-6 in its current form.

    Bill C-6 was the culmination of many years of work. Let's leave aside the question for the moment of whether it was perfect or not, but given that we now have to go forward on a new basis, I'd like you to address the legislative basis of the commission and what needs to be done to make the specific claims process work.

    It would seem to me that there are two alternatives. One is for someone to breathe life into your commission and take it to the next step, which is to make it a fully independent commission with fully adjudicative powers independent of the department. If that doesn't work, the alternative would seem to be to have someone, perhaps the Federal Court, assume some sort of legislative responsibility to judge these claims, because the whole process of Canada being the judge and the defendant at the same time is a national embarrassment, and frankly calls into question our commitment to both justice and human rights.

    So how do you see the way forward?

º  (1655)  

    Ms. Renée Dupuis: We certainly have advocated for the creation of a permanent independent body, and we see this commission as a potential basis for such an independent body. I think there is a need for such a process. We've said that in the past, and we stand by our words. Apart from that, I think it's not for me to comment on whether it would be convenient or appropriate for the Federal Court to be given this jurisdiction. But we still think there's a need for a fully independent and permanent process to solve these claims.

    Mr. Jim Prentice: The commission still operates on the basis of the mandate that was given to it as the Indian Specific Claims Commission of Canada in 1991, as I recall, with some amendment. What changes are needed today to make your commission fully independent of the Government of Canada and able to make binding decisions? Correct me if I'm wrong, but the situation currently is that you can only give your recommendation to the government at the present time.

    Ms. Renée Dupuis: Indeed, but I think there's a whole spectrum of options here where the actual order in council could be amended, and it could go from there to a full legislative setting. The commission is responsible for dealing with claims, but there are some options available.

    Mr. Jim Prentice: So let's assume we wanted to proceed reasonably quickly to improve the current situation, short of a full legislative package. Are you saying changes could simply be made to the mandate of the commission through an order in council, in a sense moving the commission forward into an adjudicated position?

    Ms. Renée Dupuis: Well, it's not for us to determine how we can move from the actual status we have, to which status would be better, or to a different status. It's certainly not for us to say. But what I'm saying is there are options the government or could consider for doing so.

    Mr. Jim Prentice: Okay, and I accept that it's for us and not for you to consider that. But before we consider it, we need the smartest minds in the country to advise us, and you're in that position, with your fellow commissioners. Has the commission previously presented options to the government, and if so, can you table those with us?

»  (1700)  

    Ms. Renée Dupuis: I'm afraid the commission has not looked into this more specifically than what the commission has put before this committee, in terms of what our views were on Bill C-6. Apart from and more than that, we have not yet done any further study on what some of these options would be.

    Mr. Jim Prentice: Has the commission engaged in meetings about options with the AFN in particular? Have you made any recommendations to the AFN?

    Ms. Renée Dupuis: Since we do have a mandate of trying to provide some mediation support to first nations in Canada, we have met with AFN, extended an invitation, and offered to mediate any discussions they would have on this subject.

    Mr. Jim Prentice: So you're speaking in terms of a mediation between the AFN and the government—

    Ms. Renée Dupuis: Indeed.

    Mr. Jim Prentice: —towards arriving at a solution towards Bill C-6.

    Ms. Renée Dupuis: The order in council is clear on that as part of our mandate regarding providing first nations in Canada with mediation support in any matter relating to specific claims.

    Mr. Jim Prentice: Correct me if I'm wrong, but I understand that a few years ago, or perhaps in the last year, changes were made to the structure of the commission. At one time, the commission reported to the Prime Minister's Office, as I recall, and had a direct reporting relationship to the PMO, so in a sense it did not report to the department. I gather changes were made such that the commission now reports to the department, and no longer to the Prime Minister's Office. Can you explain that, and tell us when that took place?

    Ms. Renée Dupuis: As I said earlier this afternoon, from 1991 through the summer of 2004, the Prime Minister was designated as the appropriate minister under the Financial Administration Act. In July 2004, there was a decision made by the government to designate the Minister of Indian Affairs and Northern Development as the appropriate minister for the purposes of that act. So for the purposes of administration, the Minister of Indian Affairs is now the minister responsible before the House on ICC, which does not, in our view—and we have made this clear with the minister—diminish our independence. We still operate and we need to operate at arm's length from the government. That's what we have been doing since July 2004.

    The Chair: Thank you, Mr. Prentice.

    It's now the government's opportunity, if they have further questions.

    Ms. Barnes.

    Hon. Sue Barnes: Thank you.

    You've mentioned the facilitation role. I took your answer to mean the facilitation role on individual, specific claims. Was I correct on that? It wasn't facilitation on doing the new bill?

    Ms. Renée Dupuis: We have a mandate of providing mediation support to the first nations and Canada when they are involved in an accepted given claim. If they have to negotiate and they have impasses and need support, we can provide them with mediation support.

    Hon. Sue Barnes: Okay. it's mediation support, but in actual fact, exactly what type of support are you offering, just to give people an idea?

    Ms. Renée Dupuis: It depends. It takes place under various circumstances. The most obvious one would be that we have an accepted claim and both parties consent to refer to ICC for mediation support. We have other cases where parties will ask the ICC to monitor joint studies and make things happen; it's more of a facilitation role in the conduct of joint studies or joint analysis. Also, if in the course of an inquiry there appears to be some room for negotiation, we will invite people to take advantage of and benefit from our mediation process. So at any stage of the inquiry a mediation service can be provided.

    It takes different forms: monitoring the whole negotiating process from the moment it's an accepted claim to a settlement; helping parties write terms of reference for consultants who will be hired to conduct loss of use studies, let's say; it can take the form of coordination of joint studies—research and analysis, and so on. It also has to do with monitoring all the undertakings of the parties during the whole process.

    I think you have heard other witnesses refer to the fact that the ICC was good at maintaining focus and keeping parties moving forward in the whole process. I think one can appreciate that if you have a claim with 12 different issues and different circumstances, it can be a very challenging process just to keep the parties online and moving forward.

    Basically that's the kind of service mediation and facilitation we're providing. It's all of the spectrum of alternative dispute resolution means, so it's not necessarily strictly mediation in all cases. Sometimes it's more a facilitation.

»  (1705)  

    Hon. Sue Barnes: Okay.

    Thank you.

    The Chair: Thank you, Ms. Barnes.

    Ms. Dupuis, that ends our multi-round line of questioning of you. I just want to thank you, on behalf of all the committee members, for coming today, for your presentation, and for your very thoughtful answers to a multitude, if not a barrage, of questions. Thanks for coming today. As Mr. Prentice and others have indicated, thanks so much for all the good work you do.

[Translation]

    Ms. Renée Dupuis: Thank you, Mr. Chairman.

[English]

    The Chair: There is a vote that obligates us to be in the House of Commons in perhaps 15 or 20 minutes' time. Unless there are any further, very short points that anyone wishes to make, I'll declare the meeting closed.