Pressure builds, government balks

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With the target date for the establishment of an independent specific claims commission and tribunal rapidly approaching, federal bureaucrats are trying to persuade First Nation negotiators to lower their expectations and let the government off the hook.

April 1, 1999 is the date when a new independent specific claims commission, which would mediate land claim disputes between the government and First Nations, is due to be established. An independent tribunal with the power to decide cases, if the two sides can't work out a mutually acceptable deal through the commission, is also supposed to be part of the deal.

A joint task force, with representatives of the Assembly of First Nations, the Department of Justice and the Department of Indian Affairs, has been meeting since March 1997. Their goal has been to find a way to follow through on a promise to create the new commission and tribunal the Liberals made in the Red Book, their 1993 election platform document. Indian Affairs Minister Jane Stewart renewed that promise in her January 1998 action plan, Gathering Strength.

But it became obvious that the highest level of decision makers in the Canadian government were not prepared to move forward on this initiative. In mid-October, the Indian Affairs minister informed the joint task force members she was getting indications from Cabinet, the Prime Ministers Office and Treasury Board officials there were worries about the potential cost of keeping this promise.

A copy of the minutes of an Oct. 19 meeting that involved joint task force members, National Chief Phil Fontaine and Minister Stewart and her senior advisors, was obtained by Windspeaker. The five-page document shows the minister tried to convince the chiefs she couldn't sell the idea of an independent claims tribunal to Cabinet. A similar government-created body, the Canadian Human Rights Tribunal, had recently rendered a ruling that may force the federal government to pay $4 billion in pay equity compensation.

"The minister believes that Cabinet, that Chretien won't accept it and that we should accept something less," joint task force member Art Manuel, chief of the British Columbia Neskonlith band, told the Union of British Columbia Indian Chiefs.

Manuel asked the British Columbia chiefs if they were willing to accept a slower, incremental approach to settling land claims. He then asked the chiefs to pass a resolution saying they were not in favor of giving in. He wanted to force the Indian Affairs minister to take it to Cabinet and let the federal government's inner circle show their true colors.

"The argument and debate I'm having now with the other leaders is: Do we consent to proceed incrementally or do we stand on principle?," he said. "The question to you and it's your decision as you vote on this resolution is this: Do you want money now or do you want principle? If you approve the resolution we will challenge the prime minister by making sure this proposal goes to Cabinet, to his private session, to test them, to test their commitment to human rights."

The Union chiefs had no trouble in giving Chief Manuel his resolution.

With the AFN's Confederacy of Nations meeting scheduled for Dec. 8, 9 and 10 in Ottawa, the debate that has gained momentum across the country in recent months about the national chief's approach to dealing with the federal government - many chiefs worry that Chief Fontaine is working too closely with Minister Stewart - will be highlighted when this issue is raised.

While Fontaine penned a letter to the minister supporting the hard line of task force members like Manuel, sources in Ottawa say Fontaine's staff is working hard to find a compromise.

AFN spokesman Maurice Switzer said the negotiations centre around how to make the process more attractive to Cabinet and Treasury Board.

"The problem we're grappling with is the timing and financing of the payments," he said.

Dene Nation President Bill Erasmus is the AFN vice-chiefwith responsibility for specific claims. Unlike Chief Manuel, Erasmus is ready to work with the federal government to make the process work.

"We recognize it's going to take some time," he said during a phone interview on Nov. 21. "We think we've got the commitment. I believe there will be a tribunal with binding authority and there will be a commission and the settlements will include land and money."

Erasmus also said the federal government has admitted that outstanding claims are a legitimate debt that Canada owes.

"They recognize it's their legal obligation," he said. "That's not an item of contention. It's more an issue of economics."

Unofficial sources in Ottawa say Finance Minister Paul Martin assured Chief Fontaine, during a private meeting in late October, that Canada admits the outstanding claims are legitimate debts. However, neither the AFN nor Finance would comment on what the two men talked about during the meeting.

Some chiefs are angry the government is using the pay-equity decision as an excuse to postpone payments of land claims. They say they've been waiting in line a lot longer than the civil servants who are destined to receive the $4 billion Human Rights Tribunal award if it survives an appeal. Some call it outright racism for the government to expect Aboriginal people to step aside for such a ruling. Erasmus, like Chief Fontaine, is not willing to take such a hard line on that issue.

"When you look at the Canadian historical perspective, you'll see this whole society has been developed for the middle class Caucasian person," Erasmus said. "If it was say 100 years from now, say 2082 - 100 years after the passage of the Constitution Act - then it shouldn't be tolerated. But I don't see this as racism. It's more of an evolution of thinking. I'm sure, in the end, they'll support this process."

There are more than 400 outstanding specific claims on the books right now. Indian Affairs officials are not sure what those claims could eventuallyrepresent in terms of settlement dollars. The consensus among the chiefs is that the claims are worth billions. Close to 200 claims have been settled during the last 20 years with an average worth of just over $4 million. Those numbers could sky-rocket if the federal government gives up control of the process. The federal Justice department, at this moment, decides which claims are legitimate and will be accepted for negotiation and which won't be.

"It's a conflict of interest," Manuel said. "It is wrong - morally wrong - for the Canadian government to be involved in a land claim process where they are judge and jury over whether they stole our land from us."

Manuel is not willing to be as trusting when dealing with the federal government as Chief Fontaine and Erasmus appear to be. He views the timing of the government's decision to back away from its promise with great suspicion.

His staff at the Shuswap Nation Tribal Council have met with economists in an effort to gain some ammunition to pressure the government if it backs away from doing what it has already admitted is the right thing. He believes justice delayed is justice denied and he also feels Canada is getting a free ride by not including the value of the outstanding land claim debts in the accounting of its assets. Manuel believes a trip to Wall Street, New York City's financial district, to alert international government bond raters to this fact might be the right move to convince Minister Martin to move the claims up his priority list.

Vancouver Sun business writer Clive Austin believes that Canada's total assets, estimated in the business community at between $700 billion and $1 trillion, are substantial enough to withstand the introduction of a debt of a even a couple of billion dollars without being downgraded. He said, however, that a change in a bond rating would mean a great increase in the cost of borrowing money, which would in turn mean a significant cost to taxpayers.

Chief Manuel belives this tactic will work with Cabinet and Treasury Board. The fight that's looming, it appears, will be one of deciding whether to follow the hard line of Manuel or the more conciliatory line of the national chief. That fight will be staged in Ottawa in early December.

The Minister of Indian Affairs has promised to take the idea of the claims tribunal to Cabinet and fight for it, sources say, but she would rather the chiefs accepted the current fiscal realities and allowed her to ask for a little bit now and a little bit later.

She'll get her answer after the chiefs assembly in Ottawa.