Thank you, Madam Chairperson and honourable members. There is a briefing paper, but I regret that it's not available, as we did not have time to provide it in both official languages. You'll be receiving that in the fullness of time.
I'd like to zero in on some of the major points that have to do with the parliamentary objectives in relation to the tribunal. It is an aspect of reconciliation. One of its objects is to create conditions in which negotiations may occur. There is an express recognition of the value of mediation, and the tribunal is empowered to make rules with respect to mediation.
Just to back up a bit, what are specific claims and how did they come to be part of the national discussion? In 1974, the Calder decision in the Supreme Court of Canada split evenly on the question of whether aboriginal title had been extinguished in British Columbia. The appeal was disposed of on a technicality, but governments started to take claims seriously. Two policies were formed: one to address specific claims and another was to address comprehensive claims.
Specific claims relate to treaties, the failure to observe the provisions of treaties, reserve creation, and the federal fiduciary obligations in relation to reserves. Comprehensive claims address unceded indigenous interests in land and resources.
I view the jurisdiction of the Specific Claims Tribunal as a presiding over the death of a thousand cuts, because we're dealing not with the big, broad, nationwide questions around indigenous title and what treaties mean, but rather the particular actions of succeeding governments in relation to indigenous interests at a local level that, when found in breach, have done so much damage to the indigenous peoples of our nation.
Comprehensive claims, of course, have more to do with the colonial failure to uniformly apply the common law recognition of indigenous interests in land and resources of the indigenous nations. Who became the responsible ministry of government to deliver these programs that were intended to address these claims? Well, it became INAC.
Cultural program delivery developed in INAC, because that's what they do. However, claims cannot be addressed in processes formed around a program mindset. These are questions of justice, not of programs. Claims engage substantive questions around indigenous interests and crown fiduciary obligations, not some sort of policy that feels good because it on the surface appears to be dealing with an interest or an issue that is affecting us nationwide. How can a policy come to grips with a substantive interest of a distinctive group of Canadians known as indigenous peoples?
But it went to INAC, and it stayed there. It appears, from our work, that in large measure it's still there. This has been a problem.
I say that these are more matters for justice. There's a governing precept in the crown-indigenous relationship called “the honour of the crown”. The honour of the crown relates to the fiduciary relationship between the crown and indigenous peoples. This is a place for the law. It is a place where the guiding principles in a relationship, when it comes to claims, are law, based for the most part on the fiduciary relationship.
Indeed, the Supreme Court of Canada, in Haida II and Tsilhqot'in, has recently said that where treaties do not exist, there are government obligations to pursue treaty-making. Can that be done in a policy-based process that we call the “comprehensive claims policy” where there is no oversight by a body empowered to make sure that everybody's at the table and to make sure that they're there to negotiate in good faith? I say no.
Going back to what's happening on specific claims, we just heard that there are thought to be 400 claims. We opened our doors in June 2011. We've had a total of 90 claims. Why is that? Many of the claims that have gone to hearing and resulted in decisions have gone to judicial review in the Federal Court of Appeal. There's one pending in the Supreme Court of Canada.
It's natural that people to sit back and wait to see how it works out, but early decisions of the tribunal in Kitselas that were upheld on judicial review have not resulted, it seems, in any settlements of like claims. The Auditor General has made that point.
Why is this? If you have a policy group dealing with claims at the bureaucratic level, the idea of a precedent seems to mean very little to them because it's a program to be administered.
In stakeholder consultations when I was first appointed chair—and I am the first chairperson—we engaged broadly with stakeholders, in part through the advisory committee that we're allowed to constitute under our act. We learned there that there was absolutely no interest in the federal crown in negotiating a claim that had come before the tribunal.
This puzzled us, because we're judges, and we're used to getting in there and helping litigants settle matters. Judges no longer just sit back, sphinx-like, and listen. They get involved, because if they didn't, the courts would get completely bogged down. Ninety per cent of civil filings are settled. Many, many of those are due to judicial encouragement of ADR. In some matters, ADR is required.
The answer was, “No negotiation: the minister has rejected the claim.”
With your leave, I'll take a couple of minutes longer, Madam Chairperson.