Thank you, Mr. Chair.
I speak as a private citizen with a long interest in treaty issues.
I want to compliment the government on demonstrating the political will to proceed with this initiative, Bill C-30. I also want to compliment Minister Prentice and Minister Strahl on the joint drafting initiative with the Assembly of First Nations.
However, I wish that Parliament would take more seriously the joint nomination option and the larger issue of truly independent tribunals for implementation problems around treaties generally, not just specific claims issues. For example, Canada has negotiated in northern Canada over the last three decades treaties that constitute great nation-building achievements for this country, but, sad to say, every one of those agreements has generated implementation issues. Even INAC deputy minister Michael Wernick conceded that implementation remains a problem when he told the Senate Standing Committee on Aboriginal Peoples on February 12, “As a department, there is only so much that we can unilaterally accomplish in the fulfillment of the terms of implementation without the full participation of our colleagues right across the government.”
In 1999 Miguel Alfonso Martinez, United Nations special rapporteur on treaties, found that the great disappointment of treaty-making since colonial times has been the colonial governments' consistent failure to faithfully implement what had been agreed to in negotiations with first nations. “States with significant indigenous populations should establish a special jurisdiction to deal exclusively with indigenous issues”—Martinez said that in proposing that indigenous and non-indigenous equality was essential for truly independent adjudicative bodies. This is not a totally new idea. In the 1704 case of Mohegan Indians v. Connecticut in appeals to the Privy Council from the American plantations, England's Attorney General supported the creation of a permanent third party court to hear treaty implementation matters.
As the royal proclamation was forgotten for a long time in this country and ignored for a hundred years in B.C., that principle has been forgotten. But in 1975 New Zealand established the Treaty of Waitangi tribunal to hear issues arising from the 1840s treaty between Britain and the Maori. This body has an equal number of Maori and non-Maori commissioners, and may hold bilingual hearings.
It is important to remember throughout these discussions that treaties are covenants between two parties. In Canada, disputes between treaty signatories are adjudicated ultimately by courts appointed by only one of the parties. Parliamentarians, especially in 2008, might find reason to ask if this is fair.
As a mediator, I might argue that mediators and arbitrators could be more effective and efficient than any highly structured tribunal. But as we all know from Nunavut implementation issues, the federal finance department, for example, refuses to participate in arbitration processes, even those provided for in a constitutionally protected treaty. So in this case, arbitrators may not be an option.
However, I would submit that there are certainly enough first nation lawyers in Canada to fill all the seats on a bipartite body structured like a labour relations board, or for example a tripartite body like the B.C. Treaty Commission. So there is no good reason why a Canada and first nations joint appointment process, or at the very least a joint nomination process, could not work. Yes, I would concede that would create a precedent, but to my mind, as someone who has a long interest in these questions, it would not be a bad one.
Thank you.