Good morning, colleagues, witnesses and guests. In this 15th meeting of the Standing Committee on Aboriginal Affairs and Northern Development today, we will be examining the Auditor General's report.
So this morning we have the Auditor General, Ms. Fraser, to discuss her report.
Madam Fraser, welcome to our committee. We'll be discussing your report this morning, of course, and in the course of your opening comments you can introduce your assistants who are with you here today. You'll have roughly 10 minutes. You're the only presenter this morning, so if you need a little extra time, that's perfectly acceptable. We'll then go to questions from members.
Members, I would like us to go until about 10:45 this morning, because we have about 15 minutes of committee business to wrap up before we finish at 11 o'clock.
Madam Fraser, the floor is yours.
We appreciate this opportunity to discuss chapter 4 of our March 2009 status report, entitled “Treaty Land Entitlement Obligations”. I'm accompanied today by Ronnie Campbell, assistant auditor general, and Frank Barrett, principal, both of whom are responsible for our work on aboriginal issues.
Treaty land entitlement agreements between the crown and first nations set out how the government will provide land to first nations that it failed to provide in accordance with historic treaties. The fulfillment of treaty obligations extends beyond the promise of land. Treaty rights are recognized and affirmed in the Constitution Act and, as such, are constitutionally protected.
Our office first examined the government's fulfillment of treaty land entitlement obligations in 2005. These obligations include the conversion of up to 1.4 million acres in Manitoba, and up to 2.7 million acres in Saskatchewan, to reserves once they have been selected for conversion. That audit specifically examined Indian and Northern Affairs Canada's progress in converting land selected under these agreements to reserve status in those two provinces. The audit also examined whether the department was managing the conversion process in a way that was consistent with its legal obligations to first nations.
The 2005 audit found a number of deficiencies in the department's management practices for meeting its obligations, such as inadequate planning and an absence of targets for land conversion. The audit found that these deficiencies limited the department's progress in converting lands to reserve status, in particular in Manitoba. Our 2005 audit found that about 58% of acres selected by first nations in Saskatchewan had been converted to reserve status, while only 12% of these lands had been converted in Manitoba. In that audit, we made eight recommendations, most of which focused on the need for the department to improve its management practices. The department agreed with our recommendations, and in 2006 the Minister of Indian Affairs committed the department to converting 150,000 acres of land in Manitoba to reserve status in each of the following four years.
Our recent audit examined the department's progress in converting land to reserve status and in implementing the recommendations from our 2005 report. We found that Indian and Northern Affairs Canada had made significant progress in converting land selected by first nations to reserve status.
Since 2005, the Department has converted over 315,000 acres to reserve status in the provinces of Saskatchewan and Manitoba. This represents a 42% increase in land conversions in just three years. In Manitoba alone, over 227,000 acres have been converted to reserves since our last audit.
This follow-up audit also found that the Department has made efforts to improve its communications with First Nations and work more closely with them on plans to convert outstanding land selections. However, our 2009 audit also found that Indian and Northern Affairs Canada has not made satisfactory progress toward implementing several of our recommendations for improving its management practices to meet its obligations to First Nations, in particular in Manitoba.
For instance, in that province, the Department has not developed a plan that outlines how it will manage its operations to process outstanding selections within a reasonable period of time. It has also not tracked processing times, and could not demonstrate that these times have improved over the last three years.
The continuing management weaknesses identified in this follow-up audit are of particular concern, as they relate to treaty obligations that Canada incurred more than a century ago. Our audit found that over 430 selections representing close to 650,000 acres of land remain to be converted in Manitoba. In Saskatchewan, over 700 selections representing 451,000 acres remain to be converted. Our audit concluded that without sustained management attention to correct the weaknesses we have identified, the department risks being unable to sustain its progress in converting land to reserve status.
We understand that you may also wish to discuss recent audits we have undertaken that focus on Indian and Northern Affairs Canada's responsibilities in Canada's north. In recent years we have conducted three audits in this area.
In November 2003, we reported on the department's progress in transferring federal responsibilities to the north. This audit found that the department's performance on implementation of both the Gwich'in and Inuit of Nunavut land claims left considerable room for improvement. We found the department's processes for managing its responsibilities under these agreements to be incomplete. They lacked clear milestones and feedback mechanisms to assist in meeting its obligations. Most notable was the department's focus on completing specific activities required in the land claim's implementation plans, rather than on respecting the spirit and intent of these agreements.
In April 2005, we reported on Indian and Northern Affairs Canada's development of non-renewable resources in the Northwest Territories. This audit concluded that the department was not adequately managing its responsibilities for approving the development of non-renewable resources in the Northwest Territories. The department failed to provide public boards playing a key role in the development of these resources with adequate direction and the appropriate management foundation necessary to carry out their responsibilities.
In October 2007 we reported on the Inuvialuit Final Agreement. We found that the federal government had not met some of its significant obligations under this agreement, often because it had not established the necessary processes and procedures, or identified who was responsible for taking various actions. The audit also found that 23 years after the agreement came into effect, Indian and Northern Affairs Canada still had not developed a strategy for implementing it and had taken no action to ensure that progress toward achieving the principles of the agreement was monitored.
Mr. Chair, some of our observations in both the Treaty Land Entitlement and Northern audits highlight the importance of critical factors that we identified in our 2006 Status Report. In that audit, we identified seven factors that appeared to have been critical in implementing our recommendations. The presence of some of these factors enabled the successful implementation of our recommendations. The absence of some of these factors hindered the implementation and, in turn, impeded significant change in the lives of First Nations people and Inuit.
The seven critical factors we identified in 2006 were: the need for sustained attention on the part of senior management to effect lasting change; the importance of coordination among federal organizations delivering similar programs; the need for meaningful consultation with First Nations; the value of developing capacity within First Nations communities; the importance of establishing First Nations institutions; the potential for conflicting roles of Indian and Northern Affairs Canada in its relations with First Nations; and the necessity for an appropriate legislative base for First Nations programs.
Our experience in conducting audits of Indian and Northern Affairs Canada has shown us the importance of these factors in ensuring success of first nations programs.
This concludes my opening statement. We will be pleased to answer any questions committee members may have.
Good morning, Ms. Fraser, and to Mr. Barrett and to Mr. Campbell. I'm glad to have you here. I want to thank you for your ongoing work, particularly on this file.
You did mention a number of different audits you conducted, and I want to refer to one from last year, which is the first nations child and family services program. I want to particularly focus on your comments about the funding of services under this particular program. In your audit, when you talk about funding you say the funding program is inequitable, you say the funding formula is outdated, the formula leads to funding inequities, the formula is not adapted to small agencies, and the program funding is not properly coordinated. All of this, I guess, is against a backdrop of over 8,300 first nations children in care. There is no doubt, when we talk about inequities from your report and from many reports, that the funding of family and child services on-reserve does not meet the standard of those off-reserve. They do not receive adequate funding.
You also make the point here that in Alberta they're negotiating a tripartite enhanced prevention approach and that, when fully implemented in 2010, this is going to increase the funding maybe by 74%. You also make the point that even that increase may not be adequate to meet the needs.
So that's Alberta in 2010, and we have a hell of a lot of other provinces besides Alberta.
Just recently the public accounts committee commented on this particular issue and basically made the point, well, we already have provincial standards in place; why doesn't the department adopt those provincial standards and then adequately fund them? The response from the department was, no, we're really not going to go to that approach; we're going to look at the Alberta model and see what happens with the Alberta model and maybe look at negotiating other agreements across.... So we're looking at 2010, then a further rollout of these tripartite enhanced prevention approaches.
I don't see our getting there quickly enough to help save the lives of children. What's your sense about that? Is there a better approach to achieving the objectives of this particular program?
I would also like your comments on this. As with many programs, there's no legislative mandate or approach to it. Would it be far better to have legislation in place that clearly outlines roles and responsibilities, deliverables. We talk about accountability all the time. Wouldn't legislation help from an accountability perspective and also hold the government to greater account, and not on a wing and a prayer sometimes, in trying to deal with crises?
I want your comments on that because I think it's a hell of a blot. I don't give a damn what colour of government we have in our country; something needs to be done.
Thank you, Mr. Chair. If I could, I'll spend a couple of minutes just explaining some of the problems with the funding formula.
That formula was 20 years old and had not been modified in 20 years. It is, as I say, formula-based, so there is a presumption that a certain percentage of children and families will require this care throughout the various communities. We note in the report, of course, that the percentage varies significantly. I think the base was 6%, and we saw in some cases that the communities actually went up to 23% or 28% of children and families who actually needed these services. So if they're only receiving based on a formula of 6%, there's obviously a gap in that.
One of the other difficulties that arise from the formula is that it hasn't been adapted to take in new services and new kinds of services, so while provincial agencies and governments have gone much more toward preventive services, those were really not being funded under the funding formula. What was being funded, in fact, was taking children into care. So one has to question it. We make the comment that there are so many children in care. Well, that's perhaps a consequence of the way the funding is done. If you can't get preventive services and the only way you can provide services is to take them into care, it's perhaps not surprising that there are so many being taken into care.
I should point out as well that the department's policy is that these children and families should receive comparable services. They've never actually defined what they mean by comparable services. But we would sort of interpret that to at least look at what the services are that are being provided by the various provinces in this area.
There is clearly, in my mind, an underfunding in the program, and I think the agreement with Alberta shows that quite starkly when the funding is going to go up by 74% or 75%.
Some of the services are already provided by provincial agencies. In those cases the federal government will pay, if you will, the bill from the provincial agencies. So they will fund at that higher level. It's when it's first nations agencies that they fund at a lower level. I think it raises a lot of questions. It's not surprising that these agencies are struggling to deliver the services if they're being funded so much less than their provincial counterparts.
The departments certainly should have the information to be able to do the comparison with provincial, asking what the provincial rates are in the services, because in many cases they are actually paying those. We didn't find that they had done that kind of analysis and we would have expected them to do that.
As for the legislative approach, that is one issue we have raised. Most of the programs are based on policy. Very few have an actual legislative base to them. In almost all of the audits we do, the question always comes up of roles and responsibilities. It's a question of who is actually responsible for what, and what level of service should the federal government be providing. So if there was more clarity around that, I think that would also help. But then of course the resources have to be commensurate with that responsibility.
You read it and you understood.
Ms. Fraser, I listened to what you said and I've read a lot. I told you I did my homework. Whether it's the Liberals or the Conservatives who are in power, the problem dates back a number of years. Some agreements and treaties are signed and binding on the Crown. Don't worry, in Quebec we can resolve a lot of things, but, for the moment, we are in Canada.
The problem that arises is that, currently, agreements and treaties have been signed. You say that, since 2005, the department has not accounted for all the time it devotes to converting lands into reserves. These are commitments.
What can we do to force the government to comply with those agreements?
I think that's an excellent question. The government signs agreements and seems to think it has succeeded, whereas that's just the start of a process. That's a major problem.
On a number of occasions, we've noted that there was no plan to implement the commitments. We even had a major debate with the department to tell it that it should not dwell on the objectives of the agreement but rather on specific conditions.
I'll give you the example I always cite. An agreement was reached in the north to increase the number of aboriginals working in the service sector. One of the conditions of that agreement was that a meeting would be held every year to assess the progress made. We asked them what progress had been made and how they had gone about evaluating it. They told us that their commitment was to hold one meeting a year. We won't get far with an attitude like that.
The Inuvialuit agreement was signed 26 years ago and there are still lands that have not been transferred and others that have been transferred inappropriately. The agreements are not well administered, and the managers don't pay enough attention to them. In many cases, there is no plan accompanying the treaties.
Thank you for coming before the committee. I apologize for being late. Unfortunately, I was meeting with citizens from Garden Hill about the death of a child.
In preparation, I went through the report. Since 1998 we have had a litany of failure on the government's part--it doesn't matter which government--to meet its obligations. In the most recent report, under the treaty land entitlement, you talk about the disparities between Manitoba and Saskatchewan, for example.
Earlier, in response to Mr. Russell's question, you also touched on funding. I know that you appeared before the Senate committee last night, and one of the questions that came before you was roughly around why the department isn't able to deal with this.
Funding seems to be a constant thread, whether we're talking about health care, treaty implementation, education, or water. It doesn't matter what it is. I think there's an acknowledged disparity between what first nations receive versus what Canadians off-reserve receive from municipalities or provincial governments or their federal government.
In your view, is it possible to get a reasonable estimation of the funding that would be required in order that first nations would receive funding comparable to what Canadians off-reserve receive?
I think it is a responsibility of the department and the government to know the level of services that they should be providing. Regarding child and family welfare or education, if they have made a policy decision to give comparable services, they should know what that level of service means and what that translates into, and they should be able to cost that. We have never seen that being done.
I said last night at the Senate hearing that I think if that exercise were done, we would probably all be shocked at what the gap is. We don't often talk about funding, and it's kind of unusual for the Auditor General to be talking about funding, but it's becoming very clear that it is a major issue in this department. In some of the reports, we mention that the first nations population is growing by about 10% or 11% a year, and funding is growing by 1% or 2%. Just on the face of it, the disparities are likely to get greater.
The department should be able to say, for each service they provide, what the level of service is, what the service standard is, and how much that costs. They can easily get the comparatives from provincial governments, or municipal governments, or whoever else provides those kinds of services.
I welcome our witnesses today.
Thank you for the report. I also want to acknowledge that obviously there's a long way to go in continuing this process, but at the same time, there have been significant improvements. I noted in your conclusion, especially in paragraph 4.59, that overall Indian and Northern Affairs Canada has made satisfactory progress, with a 42% increase in three years. In addition, the next paragraph talks about the improvement in the relationship with first nations on plans to convert their outstanding selections enabling better coordination of its environmental assessments, etc.
Flipping back to page 10 of your report, paragraph 4.32 talks about the 42% increase and then paragraph 4.33 talks about the difference, with 159,000 acres converted between 1997 and 2005. Certainly 159,000 in one year compared to that number in eight years seems to be significant progress. I think we need to keep in mind that we can celebrate those successes.
Your report points out involving several partners in the process. I would like to follow up on paragraph 4.8, where you talk about treaty land entitlement agreements setting out the necessary responsibilities for INAC, the provinces, and the first nations. The first nations are responsible for land selection and third party interests. I'm wondering if there's any advice you could give us or that we as a committee could encourage first nations groups to take in helping themselves in expediting the TLE process.
It takes three partners. I recognize that, and I want to come back to the provinces in a bit. We've already said what INAC can do to improve, but could you help me understand what some of the other pieces are that we could address in terms of expediting the TLE process?
We didn't specifically look at the first nations' role in this. We were looking at the management process of Indian and Northern Affairs.
I would say on the selection process by first nations that I don't get the sense that it's problematic at this point, because as we mentioned in the opening statement, over one million acres have been selected but still have not been converted. It's not a question that they're not doing the selections and that's why it's taking time; the selections are being made and the conversion process is very long.
One of the stumbling blocks that still remains to be resolved is the third party interests. That can be a number of factors. It could be municipalities, right of access, or water authorities, a number of issues, and at times the first nations have difficulty resolving these. We saw that when the department, particularly in Saskatchewan, became involved as a bit of a facilitator they were able to help the first nations resolve those issues more quickly rather than having the two parties just come to a standstill and not agree.
Thanks for coming. I love when we get an objective analysis of government.
I have two quick questions, and if you can keep your answers short, I'd like to share my time with Mr. Bélanger.
The first one is on the northern land claims. We still have a bit of a philosophical disagreement on the spirit of it, but I want to get into the letter of it. There are problems even in the basics. We have a nine-year review going on, and I think we're in year 14 just to provide the basic funding for the programs.
One of them allows a first nation to take down justice, and now they are in 10 years of negotiations to get something we have already signed off that they could have.
I wonder if you see faults in the northern land claims--in the implementation, almost in the letter of the law, as opposed to the spirit.
You're right, we are not the auditors and have no mandate to audit first nations. They have their own auditors, as do the provincial governments. We are really looking at what the department is doing in all of this. We do agree there are three parties in all of this, but we're really looking at their management processes.
Presumably there is some impact from other parties, and as we mentioned, the third party interest often has an impact upon that. When we did our first audit, for example, there were some of the issues just in the management processes at Indian and Northern Affairs that were affecting the conversion process. One example I can give you—which they have since addressed, we're pleased to see—was that an environmental assessment was required every two years. It was only good for two years. Because the process was so long, they would get to a certain point and then the environmental assessment would be outdated and they'd have to start all over again. That has now been extended to five years.
So we were trying to look at the management process within the department and how they were managing this, and whether they had a plan, targets, and how they were proceeding on that.
Thank you to the witnesses for coming today.
In my private practice, just before this last election, I was involved in working with a number of first nations, primarily in Saskatchewan, in developing infrastructure around urban centres, obviously for their economic development, but also to improve access to various services like health and education. I was reading the 2005 report and the 2009 report comparatively, almost on that basis alone, because we identified a few challenges there. The treaty land entitlement agreements require that first nations negotiate a municipal service provision agreement with local municipalities. Obviously, if they need municipal services for reserve land that's attached to urban centres, there are cost-effective reasons for that. It absolutely may be required to be part of that urban infrastructure.
In your 2005 audit you identified that negotiating a municipal service provision agreement was a factor in delaying or undermining the selected land conversion process time—which is what a lot of chapter 4 focuses on—resulting in first nations paying taxes on the land selection out of settlement funds. I don't believe this issue was raised in the 2009 report, so I have two questions.
Does the negotiation of municipal service provision agreements continue to pose barriers for the selected land conversion process? And second, did the auditors follow up to examine what steps the department has taken since 2005 to resolve this issue?
Mr. Chair, thank you for the question.
I will just make a couple of clarifications. In the 2009 audit, there are two important points. One, on the keeping of records, we found there were some significant problems, particularly in the Manitoba office; but we also noted that they are putting in place a new database that will capture a lot of the information needed—not all of it, but a lot of it.
But that is a very different system from the LCOS dealing with comprehensive land claims. I believe the department could speak more to that system, but it's certainly covering different issues, as I understand it.
Welcome to our committee. I'm one of those people who were around when this TLE process was really quite a hot political potato. So there is a lot of history at work here, which I think has affected the current status of the difference between Saskatchewan and Manitoba. The fact that the two tripartite agreements were signed five years apart, and that Saskatchewan went first, has a lot to do with that history, and I think the differences are still showing up. I don't think I need to dredge any of that up, but we are talking about implementation here, not initiation.
I have a couple of questions. In your 2005 report, you talked about that fund that was set aside for addressing third party interests, and you talked about how none of that fund had been disbursed. Could you give us the current situation? The 2009 report does not address that question.
Let me just check. The first nations are required to produce audits to the Department of Indian and Northern Affairs. Audited financial information is one of the requirements, and in fact if they do not do that, they do not get their funding renewed.
So all first nations—some produce them, we've noted in the past, a little late—produce audited financial statements to the department. In fact, when we did a study on reporting requirements, we found that in some cases they had requirements to produce up to five different financial statements.
So they're producing it. We have done work on the reports themselves and how the department will deal with them, but we don't necessarily share information, for example, with the particular auditor.
As for our provincial colleagues, each province has a legislative auditor, and we act as the auditor of the three territories. We do work together. It's sort of collaborative or concurrent work. For example, when we audited the B.C. treaty process, the Auditor General of British Columbia looked at the same process from a provincial point of view. Our reports were released on the same day, and we had a common forward, raising common issues between the federal and provincial government.
So at times we will do collaborative work. For example, the Auditor General of Alberta did some work on child and family services in Alberta, so we're aware of what our colleagues are doing as well.
As the Auditor General says, we're planning to report in May 2010. We're looking specifically at the Northwest Territories because we need to scope it in some manageable way. The Auditor General is also the auditor of the territories, so our territorial audit team is going to be doing some work on the actions of the territorial government.
Frank's team, under my direction, is going to be looking at what the federal government has done to prepare for economic development in the north. We're looking at the settlement of land claims, going back to the Berger commission, where Justice Berger had recommended settlement of land claims before development really got going. So we're going to look at action going back a fair bit in time. We're also going to look at the establishment of a regulatory framework. It looks as if one is in place. As the other member has brought out, the McCrank report is raising questions about how well that's working. We're also going to ask questions about what both governments have done in relation to building capacity so that the people who live in those communities are in a position to take advantage of development as and when it happens.
It's similar to some questions that have already been asked, Mr. Chair. And I want to thank you.
On comprehensive land claims, even since you've done your report there have been new ones signed—I mean the Nisga'a, the Nunatsiavut agreement that was in Labrador—and we often get into this debate within Canada. We sign all these agreements with native people. They say, you know, we pump the money out the door—this is what some people say—and we don't get a tangible result, when they look at it. And many times it's because of the obligations of the crown that haven't been fulfilled. Even since 2005 in Nunatsiavut, which I'm familiar with in Labrador, there are already complaints about the lack of implementation, the slow dribble of funds to deliver services, and things of this nature.
Because there are so many departments involved, have you made recommendations about how to improve the efficiency of the implementation of these land claims agreements? There's going to be a big conference here in May that talks about this. Something more must be done, because this criticism will inevitably fall back on aboriginal people, and this cycle continues when really the crown is not living up to its own obligations, in my view.