Madam Speaker, this is the second chance the House has had to make improvements to Bill C-6. We have to realize just how serious the situation is and realize that Bill C-6 does little to improve that situation.
There are about 600 claims in the system now and the number is expected to increase to 1,700. There are significant ways in which Bill C-6 falls short of the current definition of specific claims and it falls short in terms of what was consistently promised and agreed to earlier.
The current definition of “specific claim” refers to breaches of treaties and agreements and is not confined to treaties and agreements that deal with lands and assets.
Currently a claim can be advanced dealing with treaty rights with respect to hunting and fishing. Cases have arisen in which the Indian Claims Commission has dealt with that kind of case. The Bill C-6 definition excludes those kinds of treaty breaches. There is an even more devastating omission. I cannot understate the importance of this because failure to recognize this kind of claim would destroy some first nations communities.
Many first nations communities were unilaterally promised that the crown would give them reserves. There are first nations whose ability to have any kind of land base or quality of life depends on the fulfilment of a unilateral undertaking.
The Supreme Court of Canada said in Guerin v. The Queen that a fiduciary obligation leading to the enforcement right, in other words a specific claim, could include a unilateral undertaking. The Supreme Court of Canada said that this was a way in which a specific claim might arise. This is excluded from the definition in Bill C-6. That was never discussed by the joint task force. The federal AFN joint task force definition of specific claim included promises to provide lands or assets by a unilateral undertaking. The federal government had agreed, but Bill C-6 dishonours that agreement.
Why is the federal government so intent to walk away from a commitment? To include a unilateral undertaking does not mean that every unilateral undertaking would become a specific claim. We still have to show that it is a legal obligation. There is no risk to the federal government of a new category of claims suddenly being created. Only if it is a legal obligation that is being breached can the unilateral undertaking give rise to a claim. We would not be adding to the category of federal liability, but we would not be excluding it under the joint task force definition.
Even though the House has passed Bill C-6, these amendments from the upper chamber give us an opportunity to point out these deficiencies which can be fixed.
The definition in Bill C-6 excludes a category of claims. What is the practical significance? Potentially one-third to more than one-half of specific claims might be excluded. British Columbia and Quebec would be hit hard, hit where it hurts. Do people have a land base or not? Does a group have the basis for a collective existence? This is a serious business and the exclusion from Bill C-6 is unacceptable.
If this were not enough, Bill C-6 has added new exclusions. A claim must be at least 15 years old. Imagine having a grievance against the federal government and being told to come back in 15 years to see if the government will deal with it.
Another exclusion is claims involving rights that arose under a British statute or proclamation before Confederation. We know constitutionally, Canada agreed to assume responsibility for the crown's responsibility, but not first nations which will be turned aside by Bill C-6. When Bill C-6 was in committee before its passage, various members, including Liberals, acknowledged these problems.
Specific amendments were proposed in the House to remedy the problems with Bill C-6 so it could go forward as an improved bill. All these amendments were rejected by a straight majority party vote, with the exception of one Liberal dissenter. The government decided to go against all opposition parties and against all first nations, and now it is wondering why we still want to see improvements in Bill C-6. The issues we are raising have to be addressed if we are to purport that Bill C-6 is fair and just.
I have not addressed another important point, and that is access to the tribunal. There is no problem getting to the commission set up in Bill C-6. Anyone can do that, but so what?
Everyone knew there was a problem at the time of Oka, but since Oka another 400 or so claims have been filed and an additional 60 claims are filed every year, each alleging an outstanding lawful obligation.
The majority of the claims filed are ultimately found to be valid, yet Bill C-6 is setting up a system which can process only seven or eight claims a year because of the cap on both the amount of the award and the limited amount of money given to the commission annually.
Every year there are more claims coming into the system than can be resolved. Continuing a situation in which the vast majority of claimants have to wait in a long line to have access to binding dispute resolution, which means access to the tribunal, will just continue the failures of the past.
There is little value in having access to a commission where one can talk if there is no incentive for the federal government to get serious, to make a decision about the claim and, if it considers it valid, to negotiate the settlement of the claim. Alternate dispute resolution works only if there is an incentive on both sides to make it work. To tell people to wait in line, to tell people to wait 15 years, is not likely to create social justice.
It is not social justice at all to tell claimants that if their claim is over a certain amount, $7 million as the bill stands, and $10 million with the amendments, they cannot have access to the dispute resolution agency. Two claims are reported to have been settled in the last fiscal year, one for approximately $63 million and the other for $6 million. In the previous year, five claims were resolved, four of which were well over $6 million: $17 million, $37 million, $83 million, and $14 million. Only one claim was under $10 million and it was for $40,000.
There is the further problem that a claim may enter the system when it is somewhat under $7 million, but then, because of the delays, the interest brings the amount to above $7 million. The first nation then has to decide to forego the interest, no matter how long it takes, or to start over in court.
The Indian Claims Commission, in its submission to the House committee, said that of 120 claims that it had considered, fewer than 10 were for less than $7 million. Some lawyers have called this fiscal cap draconian. It is of no help to know that the government can raise the limit. It can also lower it. How are we getting away from the conflict of interest if the federal executive freely has the right to determine it just might lower the cap at any time? How can we talk about an independent commission?
If this House were to turn down the proposed amendments, we would have an opportunity to go back to the drawing board, do it right and come up with a new Bill C-6 that would have the support of first nations.
I know I cannot propose new amendments, but I can ask the government for assurances. I would like to know if it will make a commitment to continue the existing Indian Claims Commission if Bill C-6 passes. Will it give first nations the choice of going to the existing claims commission or to the Bill C-6 mechanism?
There is absolutely no reason why the two agencies could not continue to exist and give claimants a choice. It is possible today for a civil claimant to decide whether to file certain claims in federal court or in provincial court. Having the two commissions would allow first nations claimants a similar choice. Then, three or four years from now, we would have proof of whether Bill C-6 is better or worse than the status quo.
We know the federal government has fiduciary duties. Its breaches of fiduciary duties give rise to claims. The primary responsibility of a fiduciary is to avoid conflicts of interest. Now, the same party that is breaching its fiduciary duties is saying, “Trust us. Let us appoint someone to decide if we have breached our duties”. The government should not ask Parliament to give statutory credibility to its conflict of interest. It should not ask Parliament to approve it as judge in its own case.
The problem of lack of independence has been identified over and over again for the last 40 years. Now the government is saying that all these matters are unimportant because the process in Bill C-6 is totally optional and first nations who do not want to use the new agency do not have to use it. That is cynical. We all know the only other option available is court. We know that justice department lawyers do not have to worry about legal costs. We also know that they will use every technical defence available. They will not be interested in justice.
The federal government reserves the right under existing policy to invoke technical defences. That means it can invoke statutory limitation periods. If an individual does not bring a claim within six years or 20 years or whatever, then it is too late and no claim is allowed. How perverse.
We must remember that until 1951 first nations were prohibited by law from engaging a lawyer to lodge a claim. Bill C-6 says claimants will have to wait 15 years before they can file a specific claim, yet most claimants will be statute barred by the time they get to 15 years.
We should all be looking for a system to relieve the government from its conflict of interest and to set up something so it does not have to be judge and jury in its own cause.
The joint task force report recommended joint appointments. The minister now says that the insistence on joint appointments arises because the AFN wants to use this to further its claims to sovereignty. How ridiculous.
The AFN has never said anything in its presentation about Bill C-6 and sovereignty. It has been emphatic about independence. The minister is clouding the issue of independence by blaming the AFN for insisting on an independent process.
It would be so easy for the government. A person could not be appointed without both sides agreeing. An appointee could not be removed without both sides agreeing. A person could not be reappointed unless both sides agreed. What could be more clean and clear than that? Would that not be fair?
However, the government says this simple act of justice would somehow violate the principle of crown prerogative. That may be the government's preference, but this is Parliament. Here in this place, Parliament is supreme. If Parliament wishes to set out a joint appointment process, it has the clear power to do so. There is no constitutional law that will be broken. In fact, Parliament has already appointed joint bodies.
All the modern land claims agreements have dispute bodies whose composition is jointly decided. The federal government has agreed to joint appointments in NAFTA and in the World Trade Organization. There is also the Mackenzie Valley Resource Management Act. In the Meech Lake accord, the government of the day was prepared to have Supreme Court of Canada justices chosen from lists proposed by the provinces.
We could, for example, have a joint task force or committee agree on a list of names and then let the governor in council decide which of those persons would be appointed.
There is no obstacle whatsoever to prevent Parliament from providing the Bill C-6 agencies with independence. Now is the time for the federal government to break the existing pattern of conflict of interest by setting up a genuinely independent body. Now is the time for the federal government to abandon the approach that has been proven to be ineffective and lacking in independence.
This stubborn and wrong approach of the government to stack a commission in its favour is not consistent with the Charter of Rights and Freedoms and not consistent with modern administrative law doctrines. Why are we allowing a bill to be passed that will be successfully challenged in the courts before the ink is dry?
We are at a point in history where the government is about to change. There is no reason why we cannot set aside Bill C-6 and all its imperfections. There is no reason why the government and the AFN cannot return to the table next year and come up with something that could be supported by both first nations and government.
It is a simple political choice for the government: accept something so grossly imperfect today or go back and come up with something much more fair and just in the months to come.
The government has squandered its goodwill. Only a few years ago the government and the AFN were saying that they agreed to everything. Today the situation has deteriorated to the point where first nations across Canada are vigorously opposing the government's decision to proceed with Bill C-6.
This House can help Canada get back on track by using those mechanisms available to us to send Bill C-6 back to a good, joint drawing board.
