Bill C-6: MCC Written Submission

Aboriginal Neighbours
November 27, 2002

Mennonite Central Committee Canada submission to the House of Commons Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources regarding Bill C-6, The Specific Claims Resolution Act

 

Mennonite Central Committee (MCC) Canada is the Christian service arm of Mennonite and Brethren in Christ churches in Canada. We are a largely non-Aboriginal organization with nearly twenty staff working in relationship with First Nation communities from Kingcome Inlet to Saskatoon to Sheshatshiu. Activities include suicide prevention, cross-cultural exchanges and advocacy for fairness around hydro-electric production. At times we work in concert with other church organizations, especially as part of the KAIROS: Aboriginal Rights Committee.

We appreciate the opportunity to make this written submission but regret that more voices–especially the many First Nations who requested to speak–were not heard by the committee.

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Why Bill C-6 is important to MCC

First, MCC supported the ecumenical Land Rights/Right Relations petition which called on the Prime Minister to establish a truly independent commission and tribunal to address Aboriginal claims. Over 50,000 signatures were collected. Sadly, despite several requests from the KAIROS: Aboriginal Rights Committee to do so, the federal government has refused to receive the petitions in a formal way.

Second, Mennonites have been among those who have gained because of government actions which are or have been the subject of Specific Claims. In Saskatchewan, in 1897, 30 square miles of prime agricultural land was alienated from the Young Chippewayan Band without their knowledge or consent. A year later it became part of a Mennonite "reserve". This is only one example.

Third, the stakes are high. The resolution of Specific Claims is not a panacea but it is a step that can build trust between Canada and Aboriginal peoples. MCC has contact with a particular First Nation that resists filing a Specific Claim largely because it does not trust the process. Their leaders even fear requesting information directly from a government agency in Ottawa thinking it might somehow lead to the subversion of their claim. So deep is the hole of mistrust out of which we all must climb.

Fourth, this legislation could balance power relationships in a sphere where a power imbalance is the major cause of failure. We submit that it is possible–politically and practically--to establish a claims commission and tribunal that has enough independence to be effective. The petition mentioned above attests to the will of many Canadians to see such a body established.

Finally, Bill C-6 represents an opportunity. There is a remarkable consensus on what is needed. The Joint Task Force (JTF) process produced, in 1998, a model bill which many herald as workable and potentially very effective. The 1996 report of the Royal Commission on Aboriginal Peoples and, indeed, recent annual reports of the Indian Claims Commission agree on the basics. It is important that this opportunity not be missed.

Specific Concerns and Recommendations:

Independence
The commission and tribunal must have the maximum independence possible in both appearance and practice. How members are selected and how secure they feel in their positions are two indicators of independence. We are alarmed that Bill C-6 provides for no input from First Nations in the process of selection. The Governor in Council appoints members upon the Minister's recommendation. There is no requirement for the Minister to consult with First Nations. This situation may suggest to First Nations that the commission and tribunal are composed of individuals beholden to the governing party. The fact that most terms of service are only three years increases the concern that members will act in ways that please those who have the power to re-appoint them.

MCC recommends that members of the commission and tribunal be appointed by the Governor in Council from a list agreed upon by both the Assembly of First Nations and the Minister.

Speed of Resolution
The most compelling reason to create a new body to resolve specific claims is to speed up the process. Justice delayed is justice denied. However, Bill C-6 allows the Minister to delay a claim's progress indefinitely (Section 30:1) by refusing to issue a decision on whether the claim will be accepted for negotiation or not. The only built-in incentive for the Minister to issue a decision is the need to report to the commission every six months and justify any delays. Even so, there is no apparent mechanism by which the commission can compel the Minister to act if the reasons for delay are deemed inadequate. The tribunal itself also has the power to delay a claim indefinitely (46:d) at its own discretion.

MCC recommends that Bill C-6 be re-written to eliminate those features which allow the federal government to delay claims indefinitely and/or to add features which would give the commission and tribunal the power to compel government to act within set time frames, including the ability to add interest payments to an eventual settlement.

Admissibility of Claims
Implicit in our concern for Bill C-6 is the fact that resolution of a claim builds more than trust: it also generates potential for social and economic advancement of the First Nation. Simply put, the larger the claim the more potential for such a beneficial impact of its resolution. However, to the extent that the tribunal's existence would provide an incentive for parties to negotiate, it would do so only for claims up to $7 million. Regardless of the proportion of claims that will fall above or below that cap (about which there is debate) there is no doubt that Bill C-6 favours the smaller claims and sidelines the larger ones. Thus, it limits its own effectiveness as measured by positive impact on a First Nation's financial situation. Furthermore, it is ironic that the Crown can favour the less-costly of its own legal obligations.

A related concern is that the list of the types of claims that are inadmissible has grown relative to current policy and relative to the JTF proposal, the latter of which already represented a compromise by First Nations.

MCC recommends that a broader range of claims be admissible and that the $7 million per claim cap and the annual funding cap be replaced by a mechanism which combines a reasonable amount of federal control over its spending with more access to the tribunal for large claims. The JTF proposal for a five-year funding plan without per-claim limits is such a mechanism.

Collaboration
In conclusion, MCC recommends a more collaborative approach to Specific Claims than that reflected in Bill C-6. First Nations should be part of this bill not only as claimants but as co-directors of the process. They should be included, minimally, in the process of appointing and re-appointing commission and tribunal members; in the determination of which claims gain access to the process; and, finally, in the review of the process called for in Section 76.

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For further information, please contact:
Rick Zerbe Cornelsen
MCC Canada, Aboriginal Neighbours
134 Plaza Drive
Winnipeg, Manitoba R3T 5K9
(204) 261-6381 ext. 222
Fax: (204) 269-9875