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Bill C-6: An Act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other Acts

Hon. Serge Joyal: Honourable senators, as Cicero said, sometimes patience is a virtue that is easily spent, but I beg your indulgence for 10 minutes more.

This bill is fundamentally important because it is a constitutional bill. It is not like many other bills that we debate in this chamber. It is a bill that essentially addresses itself to section 35 of the Constitution and to the fiduciary responsibility of the Crown.

That fiduciary responsibility places us as government and as legislators in an awkward position. We are at the same time judge and a party to the action. We are judges because we have the responsibility for Indian matters under section 91.24. We are a party to the action because we are trustees of the Aboriginal people dating back to 1763.

Therefore, when there is an Aboriginal issue that relates to the Constitution, we are in a contradictory position. We have to adjudicate and, at the same time, we have to speak on behalf of the Aboriginal people. The mechanism that Bill C-6 would put in place is a mechanism or a system that should be able to solve more than 600 land claims. When we deal with lands in relation to Aboriginal people, we are not talking about the lands which non-Aboriginal people think about. We are talking about the constitutional rights of Aboriginal peoples to their lands. In other words, their lands are protected by the Constitution.

The Department of Indian Affairs and the Department of Justice laboured to produce a joint report in 1998, which was referred to by Senator Austin. The Supreme Court of Canada in Delgamuukw established the criteria that we have to follow when we are addressing the land claims issue of Aboriginal people.

In paragraph 168 of the court`s voluminous decision, it is stated that when we deal with land claims, we have to consult the Aboriginal people.

(2010)

"We" refers to the Crown consulting Aboriginal people, but it does not suffice only to get their views. We have to come to terms with the conflicting views in order to resolve the claims.

In this bill, we have a proposal to establish a tribunal. A tribunal is a court of justice; it is an independent body. This independent body, according to any legal advisers, must satisfy three criteria. First, it must be financially secure. In other words, it should not depend on a third party for its supply of money in order to function. Second, the members of that tribunal must have security of tenure, which means that they must remain there for a long period of time, to be immune to undue influence. In other words, they must not make popular decisions to please the person who has the authority to appoint. We can understand that easily. Third, the tribunal must have institutional autonomy. In other words, it must rule its affairs totally outside any kind of influence. Those are the three criteria for an independent tribunal.

What is at stake in this bill? In this bill is essentially the constitutional duty to establish a system of adjudication that meets those criteria so that those who go to the court will have the assurance that their claims will be dealt with properly.

When we apply those three criteria to the bill in question, there are some issues pending. One is that the judges are appointed for five years and that they might be reappointed to that or any other position. That is found in clause 41(7) of the bill. This raises the issue that a person might adjudicate on the basis of an expectation of being reappointed to that position or to another position.

That is a very important element because administrative tribunals such as the one contemplated in this bill are presently the object of an investigation by former Chief Justice Antonio Lamer. His report, expected in December, will analyze the various norms that administrative tribunals must satisfy in order to continue to adjudicate properly, to maintain not only justice but also the appearance of justice.

There are other aspects of this bill that raise problems with regard to institutional autonomy. The bill says, in various aspects, that its people are assimilated to public service. They do not have the autonomy that court personnel should have to remain outside influence.

In terms of financial autonomy, Treasury Board defines the scale of salaries. This is problematic, too. As you know, there has been a decision of the Supreme Court in relation to payment of salaries to judges, and the court has established very stringent criteria. We have had to deal with those problems here.

There are two aspects that we must reconcile in this bill. We must reconcile our duty to ensure that when we act as fiduciaries of the Aboriginal people we are not putting ourselves in a conflict of interest position, that is, adjudicating more for non-Aboriginal people than for Aboriginal people. At the same time, we are the ones who will have to foot the bill. Hence, the system contemplated in the bill is a very delicate balance between those two conflicting objectives. The mechanism put into place by this bill raises serious questions. We must be sure that this bill will meet the test of the court.

As Chief Fontaine said in his letter to us, Bill C-6 raises legal and constitutional issues, but he did not elaborate on those. When I read the letter, following the speech of Senator Gill two weeks ago, I began to question myself about which aspects of the bill might be problematic.

Honourable senators, this is a very important issue. The way we address the system in this bill will have an impact on the resolution of the issue presented by our colleague Senator Chalifoux in relation to the Metis people, because exactly the same principles apply in relation to the Metis as apply in to status Indians. It is very important that, throughout of all the emotion and all the tension raised in this discussion, we keep that in mind, because once we have taken a decision on this bill, as one would say in French —

[Translation]

Our actions will follow us. The representatives of First Nations who will read our debates, the judges who will need to consider the substance of this legislation, independently of the emotion we have brought to this debate, will read the legislation as passed. Their judgment will be based on the text itself and not solely on the very generous intentions that seek to make serious reparations for the past, as our honourable colleague, Senator LaPierre, wanted to mention and with which we all agree.

But when the courts are called upon to test the constitutionality of this bill, they must be satisfied that it perfectly reconciles the joint committee's objectives.

[English]

That joint committee had representatives from the Department of Justice and Indian and Northern Affairs Canada, as well representatives of the Aboriginal people. I read it during our recent recess. It was quite clear that the objective was to establish an independent mechanism to solve the 600 pending claims so that both parties could trust the tribunal or the court system that was put into place. Since it was a court system, there was no doubt that they were creating a very high level of demands over the satisfaction of legal norms that normally apply to a court system.

Honourable senators, read clauses 41 to 70 and you will realize that this is a real court of justice that is being proposed.

(2020)

A court, in evaluating the reliability of that system, will apply the norms that are usually operational in a court system. This is important because that guarantees that the Aboriginal people will get real satisfaction. If they are not convinced of that, what will happen? All our debates will be for nothing. All of the hours and the long sessions that the Aboriginal Affairs Committee, under the chairmanship of Senator Chalifoux, and the time that other senators will have spent on this bill will be to no avail because the system will not be trustworthy.

We have the heavy responsibility to convince ourselves that this bill satisfies those criteria. I am sure that, in so doing, we are helping the Aboriginal people to come to terms with that typically Canadian problem of unsolved and pending Aboriginal issues that exist for centuries and to develop a new approach that we would like to have as equals.

Honourable senators, it was mentioned earlier this afternoon that the First Nations are not referred to in this bill. First Nations are mentioned in this bill. Clause 45(2) of the bill states that the rules that the tribunal will adopt will be published in the First Nations Gazette or a similar publication. In other words, the bill recognizes the status of the First Nations. The First Nations Gazette has been the proper vehicle to publish the rules of the court. There is no doubt that if we do not reconcile the trust of the First Nations people in the system we are putting in place, we will not solve the conundrum that we have found ourselves in for centuries.