It is a pleasure to be here today to discuss our audit of the British Columbia treaty process. With me today is Mr. Jérôme Berthelette, Principal.
The objective of our audit was to assess the federal government's management of its participation in the BC treaty process.
The Auditor General of British Columbia tabled a separate audit report with the BC legislature on the same day as our report was tabled. He reported on the provincial involvement in the treaty process. The two audits were performed concurrently to present a broader perspective on the treaty process.
The BC treaty process began in 1992. Initially, the federal government expected that all claims in BC would be resolved by the year 2000. To date, three final agreements have been initialed but no treaties have been signed.
[English]
Mr. Chair, first nations involved in the process have borrowed close to $300 million to cover their negotiating costs, which must be paid back out of their settlements, while the federal government in turn has spent about $426 million. By March 31, 2009, the department estimates that the federal government will have spent approximately $580 million on the process and the first nations will have borrowed a total of approximately $375 million. Mr. Chair, it is unlikely that the federal government will achieve its policy objective of signing treaties with most first nations in British Columbia under the treaty process as presently constituted.
We found that fundamentally different views on the nature of the treaties being negotiated have contributed to the fact that most of the 47 negotiation tables are either inactive or not making any progress, and that 40% of the first nations eligible to participate in the process are not currently involved. Further, options available to first nations outside the treaty process to pursue their claims have made it challenging for the government to make offers to first nations that meet or exceed those available outside the process.
Mr. Chair, we found that Indian and Northern Affairs Canada complies with the authorities and policies that apply to federal participation in the B.C. treaty process and that an interdepartmental structure is in place to coordinate federal policy development. While INAC has been able to respond to some policy issues, the existing federal policy base and policy development process have not adequately addressed some important issues raised during the negotiations.
For instance, since the Supreme Court of Canada's 2004 Haida and Taku River decisions, the federal government has had a duty to consult and, where appropriate, accommodate first nations. This duty arises when the government has knowledge of the potential existence of an aboriginal right or title, and is considering taking actions that might adversely affect it. At the time we tabled our report, the federal government had not yet put in place a policy to fulfill this duty.
Finally, Mr. Chair, INAC has not conducted the necessary analyses to be able to estimate how much time and what resources will be needed to negotiate treaties with the first nations presently in the process. In addition, at the time of the audit there was no formal estimate of the results to be achieved in the short term.
[Translation]
Mr. Chairman, it is going to take more time than originally estimated to negotiate treaties with all the first nations currently participating in the process. The department needs to reconsider the way it currently manages the negotiations based on a more realistic timeline. The committee may wish to discuss this point further with the department.
[English]
Mr. Chair, notwithstanding the complexity and challenges involved in the B.C. treaty process, negotiations remain an effective means by which the parties can build the new relationship they are seeking and resolve the first nations claims. Treaties are important and can help first nations in British Columbia narrow the gap between their standard of living and that of other British Columbians. It is essential that all parties find a way to make the treaty process successful.
Thank you, Mr. Chair, for this opportunity to discuss this report with the committee. We would be happy to answer any questions that you may have.
:
Thank you, Mr. Chairman.
Good morning, everyone.
Thank you for the opportunity to speak to you today. I have with me Mr. Jeff Goldie, who is the Acting Executive Director of the Federal Treaty Negotiation Office in Vancouver. The Vancouver office is part of the Claims and Indian Government sector, based here in Ottawa, which I head at the Department of Indian Affairs and Northern Development.
Claims and Indian Government is responsible for developing and implementing key federal policies covering the negotiation and implementation of comprehensive land claims and self-government agreements, and for negotiating these claims with first nations across Canada. The FTNO executes that role in British Columbia and plays a key role in much of the policy work supporting those negotiations.
I would like to speak a little about the Auditor General's November 2006 report and what I see as its importance for the British Columbia treaty process. I will then address the report's four recommendations and our department's action plan to address them. Afterwards, Mr. Goldie and I would be pleased to answer any questions you may have.
First of all, I would like to thank Auditor General Fraser for her report. I find it to be thorough and timely. The report provides extensive context to treaty negotiations in British Columbia, in terms of both historical background and the current economic, political and legal environment. It conveys well the challenges of negotiating modern-day treaties, particularly in British Columbia where, unlike the rest of Canada, few historic treaties were signed and most of the province remains covered by unresolved land claims. And the report provides a good sense of the diversity of perspectives and expectations of the parties involved in treaty negotiations.
[English]
I also think that the Auditor General's report could not have come at a better time. Its November 2006 release, coupled with a similar report by British Columbia's auditor general, captured widespread attention, especially in British Columbia but also nationwide. This is a very good thing. Canadians who read the report will come away with a much better appreciation for both the complexity and the importance of negotiating treaties in British Columbia.
As citizens, they will be better able to assess the treaty process and, I hope, support it. Even if they have not read the report, they will have heard about it in the media. They will have heard that the negotiations have been going on for 13 years and have cost hundreds of millions of dollars without producing a single treaty. But they will also have heard the Auditor General's conclusion that, notwithstanding the difficulties and the high financial price tag, negotiations remain an effective means by which the parties, Canada and British Columbia and first nations, can build the new relationship we are all seeking and at last bring a resolution to first nations outstanding claims.
This endorsement of treaty negotiation in British Columbia is important now as we move into advanced and final stages of several final agreements and agreement-in-principle negotiations in different parts of the province. So the momentum is building right now, and we must not lose it.
In October 2006 Canada initialled the final agreement with the Lheidli T’enneh First Nations, the Government of Canada, and the Government of British Columbia. On December 8 we initialled a final agreement with Tsawwassen First Nation, and on December 9 we initialled one with the Maa-nulth First Nation on Vancouver Island.
This year these three first nations communities will be voting on whether or not to ratify those agreements. If they do so, the agreements would then go to British Columbia and Canada for ratification. At the same time, we anticipate concluding final agreement and agreement-in-principle negotiations with other first nations this year.
[Translation]
While the most obvious evidence of successful treaty negotiations is the conclusion of agreements, the truth is that less obvious, but perhaps equally important, success has been happening for some years now, in various parts of the province.
Since the British Columbia treaty process began, British Columbians' awareness of first nations issues has risen immensely. Polls show that the majority of people now think that first nations have been treated unfairly and that governments must do something about it. This view is a substantial change from common opinion just 15 years ago.
Businesses are recognizing the economic necessity of ending the existing uncertainty regarding the ownership, use and management of the province's lands and resources. They have awakened to the vast potential for partnering with first nations in joint ventures of all kinds.
Many local governments have much improved relationships with their first nations neighbours and are working with them on service delivery and joint planning. None of this would be possible, but for the growth of capacity and hope within first nations themselves. Slowly but surely, first nations people are becoming major players in British Columbia.
Of course, these developments cannot be attributed entirely to the British Columbia treaty process. Far from it. But the treaty process has been a major factor, and I mention it because I disagree with those who believe that the only measure of success is signed treaties.
Having given you some sense of what has been accomplished, I wish to acknowledge that we face many challenges. As the Auditor General's report noted, only 60% of British Columbia first nations have so far chosen to join the treaty process. Of the existing treaty tables, only a minority are currently making substantial progress in negotiations. This is not good enough and we will continue to seek, along with our provincial and first nations partners and with the facilitation of the British Columbia Treaty Commission, ways to make the British Columbia Treaty process more effective.
As one of the three parties in a voluntary process, the federal government cannot, by itself, determine outcomes at individual treaty tables nor can it control timeframes for completing treaties. Nevertheless, there is much room for improving federal participation in the treaty process. The department has accepted all four of the Auditor General's recommendations and has created an action plan to address each of them.
[English]
We are finalizing our action plan. Of course we will be consulting the Auditor General on its content. I can tell you, however, that the department is fully committed to making significant progress in all four areas addressed in the report.
First, working with our colleagues in other federal departments and agencies, we will improve existing internal processes with respect to policy development in order to respond more effectively to policy-related challenges and opportunities at the treaty table.
Second, in response to the Supreme Court of Canada decisions in Haida and Taku River, we will develop a federal approach to consultations and accommodation that will apply to all federal departments and agencies.
Third, we will explore opportunities to improve time and resource management, and place a greater emphasis on results-based negotiations.
Fourth, we will look for ways to keep Parliament more fully informed on the progress, cost, and timeframe.
Our action plan is ambitious, and much work needs to be done in order to achieve our objectives. However, I can report today on some initial steps that the department has taken regarding three of these commitments.
With respect to improving time and resource management the Federal Treaty Negotiation Office in Vancouver has just completed its annual assessments of progress at the 47 treaty tables. Implemented some years ago, table assessments help the department with its internal work planning and resource allocation for the coming year. This year we have adopted more rigour in assessing the productivity of the tables, and we will be taking appropriate steps to advise the parties.
[Translation]
With respect to keeping Parliament better informed about British Columbia treaty negotiations, just yesterday we held four information sessions on the Hill for members of Parliament and their staff to tell them about the treaty process. We talked about the economic, political and legal environment that makes treaty negotiations so challenging. We described the six-stage, non-rights-based nature of British Columbia treaty negotiations. We defined the key federal interests which Canada brings to the table and explained what the key components of a treaty are.
Mr. Goldie delivered presentations yesterday and would be happy to answer any questions you may have.
Lastly, outside of the British Columbia treaty process, but included in the Auditor General's report because of its relevance to the treaty negotiations, further progress has been made regarding the development of a consistent and efficient federal approach to consultation and accommodation that strengthens federal decision-making, supports sustainable economic growth and promotes reconciliation of aboriginal and treaty rights with other societal interests.
Further to preparatory discussions held last year with first nations, Native and Inuit groups across the country, representatives of provincial and territorial governments and federal officials regarding how best to work together to develop the federal approach, a report was sent in to all of the participants about what was heard during those discussions. A plan is being proposed for the next steps in the development of a federal approach to consultation and accommodation.
In closing, I would like to once again thank the Auditor General for her report and this committee for giving Indian and Northern Affairs the opportunity to present its perspective. Mr. Goldie and I look forward to your comments and questions.
Thank you very much, Mr. Chairman.
Thank you to the witnesses. I have a couple of quick questions.
The Auditor General talks about the duty to consult and the impact this may have on negotiations. My question, maybe to both, is has the impact of the Haida and Taku River decisions, and for that matter, of the Mikisew Cree decision, been analysed against the comprehensive land claims agreement of 1986?
Some of the premise of the comprehensive claims policy of 1986 seems to be thrown out the window with recent court decisions, and if the 1986 comprehensive claims policy is the basis upon which land claims policy is proceeding, then I think we have a conflict. That's one point.
Second, has the department ever looked at all the case law in this country over the last 25 years, as has been done by John Burrows? The collective impact of the case law makes a very strong statement as to the rights of aboriginal people, as to land claims, as to many other things. It seems to me that INAC looks at the case law one case at a time as they come, but never as a collective. That to me contributes to the policy vacuum or lack of a quick response to case law, as pointed out by the Auditor General's office.
I think that's a significant barrier. Has any work been done by the department in this area to look at it as a collective? It seems to me there's a direct correlation. When I look at John Burrows' work and at what the Auditor General has identified as issues, there seem to be some connections that can overcome some of those challenges.
I have just those two questions.
:
Thank you for the question.
Of course you can understand, too, that Mr. Morales and the first nations he is representing are involved in the negotiation process. Of course we come to the table with our own mandate.
For the federal side, the mandate is obtained through a cabinet process, and we have some flexibility. For example, when they talk about Canada requiring extinguishment of rights, it's not the case any more. It was the case at the beginning of the process when we started to negotiate comprehensive claims. We do not require that any more. We are adjusting the rights and we are defining the rights, but we are not asking for extinguishment of rights.
There is some flexibility, too, in terms of the land compensation component and self-government aspects.
Of course on the federal side, too, we have to balance the interests of Canada and of Canadian citizens with the interests of the first nations, and we also have the provinces at the table. You will find at the table a mix of all those things.
There are some issues, of course, on which there is no flexibility on the federal side. They have issues on the first nations side on which they have no flexibility, and the same is true for the provinces, so we have to find a balance in all of that.
Of course our minister agreed with Mr. Morales about having some discussions to try to find out other ways of maybe addressing some of the concerns that first nations may have, to try to find out new ways of doing business that would hopefully be faster in terms of a conclusion.
We certainly want to work with other departments on that, and I am convinced that the B.C. Treaty Commission is a key player we should bring into the picture to work with us to try to define or design some new ways or new processes.
:
First of, I want to tell you that I've read everything, and it's quite substantial. I think we're going to have to re-invite you here because this question is not strictly limited to B.C.
I am from Quebec. In Quebec we signed an agreement with the Cree, called the Paix des Braves. What was started in 2001 is now settled. Yesterday was the fifth anniversary of the signing of this treaty. Negotiations did not drag on for 20 years. Yet, we see that the federal government is unable to come to an agreement with the Cree.
Regardless of which party is in power money remains the sinews of war. At least that's my opinion. It may be that I'm mistaken, and Mr. Roy or someone from the Auditor General's Office could correct me if that is the case, but I think the federal government has a conflict of interest here. It sets the negotiation standards and advances the money which will be used. It is hard to believe that the first nations, which are going into serious debt, will have this amount deducted from a compensation they will be receiving.
I don't know if I am completely out in left field here, but it seems to me that this may take another 1,000 years or more. No one, neither me nor you—nor anyone else—will be around to see it. Despite the Auditor General's recommendations, things have slowed down in British Columbia. When I read all of this, I think, quite seriously, that it may take another 200 years.
What can we do, as electoral representatives, to speed things up? Let's not get into the politics of this. One is no better than the other. We all agree. We should not lose sight of the fact that this is a minority government.
How can we force people to pick up the pace?
I want to thank you all for your presentations today.
I have a two-part question, one for Mr. Campbell and one for Mr. Roy, and I'm going to ask them both.
In the Auditor General's report, on page 3, you talk about the fact that based on the treaty process as it currently exists, it will be difficult to get more treaties signed. In the report you also talked about, on page 19, the fact that as many of the events and negotiations today are with smaller first nations, implementation issues must be addressed. You'll see why I'm asking that with the next part of my question.
I think there are real problems with the process, so even though I think the recommendations are very good, I don't see them substantially improving the treaty process. For Mr. Roy, the fact that three agreements have been initialled and are with small first nations and in meetings with the chief negotiators in British Columbia they have indicated they have some major concerns that in their view these three small treaties.... I heard Mr. Goldie say yesterday it's not a cookie-cutter approach, but that's not the feeling of the chief negotiators. They've done an analysis of the language in those treaties and compared it to what's been on the table.
In their view, a cookie-cutter approach is being taken. These small treaties are being used for much more substantial treaty negotiations, and they feel that resources are being withdrawn from tables for nations that are not prepared to accept that cookie-cutter approach. In addition, they feel that, and you can refer to page 20 in the English version.... It talks about court decisions may now interpret treaty negotiations as a reconciliation process in which rights of first nations are implicitly recognized, since negotiations on those rights are taking place, and this may be inconsistent with the federal government position, and so on. In your presentation you talked about the non-rights-based nature of British treaties. This seems to be consistent with the fact that the Auditor General has identified that nations come at it with a rights-based approach and the government comes at it as a non-rights-based approach.
I know that's convoluted, but Mr. Campbell, would you comment on the small treaties and the lack of progress, and Mr. Roy, would you comment on those two issues?
:
Thank you for your question. Incidentally, we're not all lawyers; I am not a lawyer.
It is true that deficiencies in the process have been pointed out to us. Mr. Morales expressed this here before this committee. The Auditor General also indicated a number of deficiencies to us. We're also aware of some of these deficiencies. We're not necessarily seeking to negotiate with everyone for 30 years and spend billion of dollars.
That's why we are trying to define other measures, other means. For example, we've developed what we call treaty-related measures. These are interim measures and they could eventually be part of a final treaty. At least, they allow for economic development on a territorial basis temporarily, even if the final treaty is not signed. Thus, the community or community groups can progress and proceed with the economic development of their region, even if the treaty isn't yet finalized.
We have the capacity to get things started or to introduce interim measures as we await a final treaty. Therefore, we develop ways of doing things to facilitate development, especially the economic development of communities, who do not have to wait for a final agreement as this requires negotiations that last several years because of the complexity of the process. This way, at least these communities can go forward.
So we're developing this type of thing and at the same time, together with our partners, we are prepared to examine an actual way of doing these things. We're trying to develop new ways of doing things that are less costly, that take less time, because we're also worried about the issue of costs and loans granted to communities that they then have to reimburse.
:
I realize I tried to cram too much into my last question because I have such a short period of time, so I'm going to re-ask the question, because I didn't get the answer.
I also wanted to be on record around the fact that the treaty process in British Columbia did not start in 1993. It was the start of the BCTC process, but many nations have been attempting to get treaties for decades. One of the chiefs of one of the bands told me he started the negotiation process at the age of nine at his grandfather's knee, and he's now 63 and his nation is no closer to treaty. So the notion that it's only been 13 years is just not true. Some of these nations have been 50, 60 years. And part of it, I must admit, is because the Province of B.C. dragged its feet, but it doesn't negate the fact that many of these nations have been at it for decades.
The other thing I think is important to state is that the three treaties were initialled, but they still have a ratification process to go through in the communities, and they may or may not actually end up in final agreement. So I think that any celebration is simply around celebrating initialling, and it may not actually result in treaty in those communities.
The question I didn't get answered was around section 7.49 on page 20 in the Auditor General's report, which talks about, again, the view of first nations that there is an inherent right. In the Auditor General's report they talk about the fact that the federal government position does not necessarily come from a rights base, and in your own presentation you talked about it being a non-rights-based nature. I think that is fundamental to the lack of progress on treaties.
So please could you answer two things? One is on the B.C. mandate Mr. Goldie referred to yesterday. And I would be interested to know if we can get a copy of the B.C. mandate from the federal government. Does the B.C. mandate specifically say that the negotiators come at it from a non-rights basis? And if that's the case, how will your action plan address the lack of progress being made on these treaties because of that fundamental difference?