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First, we want to always recognize our history in Canada, and the fact that we are in a process of truth and reconciliation, in particular for this committee, indigenous and northern affairs. We are here on the unceded territory of the Algonquin people.
Pursuant to Standing Order 108(2), we are continuing our study on the specific claims and comprehensive land claims agreements, and we are hearing witnesses.
This morning we have the pleasure of hosting the Office of the Auditor General. We have with us Michael Ferguson, Joe Martire, and James McKenzie.
You will have 10 minutes to present. I'll give some hand signals when we're getting close to the end time, or give you the number of minutes left. Then members will have questions for you. The first round is seven minutes. I'll try to keep you aware of how the session is moving, and if we're coming close to a cut-off time.
Madam Chair, thank you for this opportunity to present the results of two of our audits, one on first nations specific claims, and the other on implementing the Labrador Inuit Land Claims Agreement. Joining me today are Joe Martire and James McKenzie, the principals who were responsible for the audits.
I should first note that we completed the work for these audits in July 2016 and September 2015, and we have not conducted audit work on these topics since then.
The federal government has long acknowledged that it has not always meet its obligations to first nations under historic treaties or properly managed first nations' funds or other assets. In 2007, the government started a new process, called Justice at Last, to resolve long-standing grievances more quickly, fairly and transparently—preferably through negotiations.
Our audit on first nations specific claims examined whether Indigenous and Northern Affairs Canada adequately managed the resolution of these claims. We focused on whether first nations had adequate access to the specific claims process, whether claims were resolved in line with Justice at Last, and whether results were reported publicly.
Overall, we found that Indigenous and Northern Affairs Canada didn't adequately manage the resolution of first nations specific claims in line with the new process. For example, the department wanted more claims to be resolved than received each year, but we found the department achieved this objective in only two of the eight years since Justice at Last came into force. Furthermore, the department stated that every reasonable effort would be made to achieve settlements through negotiations. However, we found that more claims were either closed by the department or ended up in litigation than were resolved through negotiation.
We also found that the department's reforms of the specific claims process weren't developed in consultation with first nations, and that the reforms introduced barriers that hindered first nations' access to the process, and impeded the resolution of claims. These barriers included certain practices such as take-it-or-leave-it offers for claims that the department deemed to be valued at under $3 million, significant unilateral cuts in funding to first nations to prepare their claims, and very limited use of mediation services.
The department also did not use available information to improve the specific claims process. This information included concerns raised by first nations and organizations representing first nations about how the department was implementing the new process. It also included the Specific Claims Tribunal decisions, most of which were in favour of first nations.
Finally, we found that the department's public reports did not contain the information needed to understand the actual results of the specific claims process. For example, the department publicly reported that the 2007 reforms were a success. However, we found that most of the settled claims used to support this assertion were already resolved or almost resolved before Justice at Last was implemented.
According to the 2016-17 Public Accounts of Canada, the government has acknowledged an outstanding liability of $5.3 billion for 528 specific claims.
I would like to turn now to our 2015 report on implementing the Labrador Inuit land claims agreement. In this audit, we focused on whether Fisheries and Oceans Canada, Parks Canada, and Indigenous and Northern Affairs Canada implemented selected obligations in the Labrador Inuit land claims agreement and in two related side agreements, one on fiscal financing and the other on the Labrador Inuit park impacts and benefits.
We found that the federal government made progress on some of its obligations under the Labrador Inuit land claims agreement. For example, Parks Canada had managed the Torngat Mountains National Park to provide employment and business opportunities to Labrador Inuit.
However, we found disagreements in some areas, such as fishing and housing. For example, Fisheries and Oceans Canada and the Nunatsiavut government disagreed over the share of the northern shrimp fishery that the Nunatsiavut government was entitled to receive under the agreement. Furthermore, the lack of a federal program for Inuit housing had limited the ability of the Nunatsiavut government to fulfill its housing responsibilities. The failure to resolve differences put a strain on the relationship between these two governments, yet the dispute resolution mechanism contained in the Labrador Inuit land claims agreement was not used to resolve these issues.
Lastly, we found that Indigenous and Northern Affairs Canada did not have an effective system to track the status of the federal government's obligations under the agreement.
Following the tabling of our 2015 and 2016 fall reports in Parliament, all the departments that we audited presented an action plan to the standing committee on public accounts to address our recommendations. Your committee may wish to ask them for an update on the implementation of their commitments.
Madam Chair, this concludes my opening statement. We would be pleased to answer any questions the committee may have.
Thank you so much for being here this morning, Auditor General. It's greatly appreciated. We appreciate all the work you've done on this file and looking at the history of land claims as it relates to the “Justice at Last” report.
We've had a number of meetings already with a number of indigenous groups. We travelled across the country and met with a number of them around specific and comprehensive land claims. There are a number of issues that are coming up again and again. Many of them relate to funding in two respects, funding for research to carry out the land claims process and funding to participate as part of the land claims process, and the amount of debt that groups incur to be a part of that process.
I wonder if you could elaborate on these claims that have been made by different indigenous groups and whether you have any findings around those areas.
Certainly, when we looked at the specific claims process, one of the obstacles that we identified, one of the barriers that we felt prevented the Justice at Last program from functioning the way that it was intended to function was that the Department of Indigenous Affairs had reduced the budget that it provided to first nations to do their research.
I believe the people that did the research told us that they were only able to do...at least one group of researchers who dealt with a number of first nations said that they would only be able to research one claim every 10 years for each of those first nations they represented.
It certainly was an issue. We identified in the report that the funding the department had provided in 2013-14, funding provided for research to first nations was $7.8 million. By 2015-16, that had dropped to $4.7 million. That is a significant reduction in the amount of money provided to first nations to do the research. That certainly was a barrier we identified.
As I said, we identified a number of different barriers that we felt meant the program didn't work the way it was intended to work. One of them was the fact that there wasn't the funding available.
Another that we identified, again, I think as I mentioned in my opening statement, was that the department decided that, if something was a low-value claim—and the department themselves identified what a low-value claim was—anything that they thought would take less than $3 million to settle, essentially they didn't get into negotiations. They just sent a letter to the first nations to say, “Here's what we're willing to provide you”, and there wasn't any offer of negotiation in that letter.
There was a mediation service that was established. If a first nation wanted to go to mediation because they felt their claim wasn't being evaluated the right way by the department, there was a mediation service; however, the department had set up that mediation service within the department itself, so the first nations didn't see it as truly independent. Therefore, it was used only once in the process that we saw.
Also, the department didn't share the information. When they did an assessment about a claim, they didn't share that information with the first nation.
I can't draw a specific correlation between the budget reduction and the lack of success in the program. What I can say is that it was one of the barriers we identified among many barriers that meant the program didn't achieve what it was intended to.
No, we didn't look at it at the individual level as to which first nations would have liked to research a claim but didn't have the funding. We didn't look at it with that level of granularity. What we were looking at was whether the program achieved what it was supposed to. Again, as I said in my opening statement, they said that they wanted to resolve more claims than they received, but they were only able to do that twice.
Overall our issue was that the program didn't achieve what it was intended to achieve, and there were a number of reasons for that.
The second area that I'd like to focus on that also was a big concern—there are so many, but we're running out of time—is around negotiations and negotiators.
In the negotiations process, as we've seen in many testimonies, it goes on and on. Then it's an on-again, off-again type of process. The level of debt—once again, reflecting back to the funding formula—the amount of debt that's accumulated.... This on-again, off-again process ensues. I guess the lack of determination to find an outcome that both organizations could agree to is almost like it was intentional to draw out the process to increase the level of debt through the funding program.
Then, finally, there's the lack of mandates of the negotiators to truly be able to negotiate a final settlement. They didn't have that mandate, nor were the negotiators from all the different departments who needed to be at the table present.
Can you elaborate on those issues that have arisen?
On the specific topic of negotiations, covered in paragraphs 6.39 through 6.44, again, that's an area that was considered a barrier, the way they conducted negotiations specifically for small claims. They imposed some unilateral changes as part of the reforms, for example, the take-it-or-leave-it offers for claims that were valued at $3 million. The $3 million amount is determined by the department without consultations with the first nations.
They also changed the way they would negotiate in terms of the development of plans that would guide the negotiation process. Prior to Justice at Last, there was a plan that was mutually agreed to. That was discontinued. That was also something the first nations talked about.
Clearly, I think the intention of Justice at Last was a good one. I think your audit report clearly identified some issues in terms of it achieving what it was supposed to achieve. Certainly in the next hour we'll look forward to hearing from the officials in terms of what their recommendations were and how they have actually moved forward since that time. That, of course, is going to be a very important part of this meeting.
I do want to start with the Labrador Inuit land claims agreement. You talk about issues with Fisheries and Oceans Canada about the share. In your minds, was the agreement very clear about how that share should be apportioned? Was it something that was just not moved forward, or was there ambiguity within the agreement itself that made it complicated to move forward on that issue?
It was our library analyst, a young man, Olivier. This was his second day on the job. We wish him well and thank the responders and especially MP Cathy McLeod. Her nursing experience came to the forefront as she looked after the situation.
Let's recommence. We do have important business. I understand the agreement is that we will continue for this hour as scheduled, so it leaves approximately 25 minutes for questions and answers.
If you recall, I was looking at the issue of clarity within the agreement that was easily interpretable versus a lack of clarity, which made it more difficult for the Labrador Inuit land claims agreement.
We found the federal and the Nunatsiavut governments had different interpretations of what the federal government had committed to on the fishery side. We talk about it in paragraph 3.38 of the report. It starts at 3.38 and goes on for a number of paragraphs. I think the way to characterize it is the Nunatsiavut government felt that they were entitled essentially to 11% of the harvest of shrimp in the particular zones and the federal government felt that this wasn't always the case. They felt there were certain circumstances under which the Nunatsiavut government's quota should increase and others where it should not increase; whereas the Nunatsiavut government's view of it was any time there was a change, they should get 11%.
I think the department's position, for example, was that if they issued new licences, then the Nunatsiavut government would be entitled to an increase in quota. They didn't increase licences, but I believe they increased quota under some of the licences and the Nunatsiavut government felt that meant they should also get an increase, but the Department of Fisheries felt that because they hadn't issued new licences, even though they had increased the overall quota, this didn't trigger the increase for the Nunatsiavut government.
Should that have been more specific and clear within the actual agreement and would we have circumvented that as an issue, or is there some very compelling reasons that the flexibility needed to be required and that there was this disconnect?
I think that's always the problem with agreements. You can't always foresee every situation that is going to come about. Obviously it's best to have agreements that cover as many situations as you can think of and cover them clearly so there's never any dispute, but some situation always arises.
I think the issue for us, and we mentioned it in paragraph 3.56 of our audit, was that a dispute mechanism was built into the land claims agreement to resolve a certain number of issues, but that dispute mechanism was never used. I think it's about having a clear agreement but then also having a dispute mechanism that's going to work, because there are always going to be some disagreements.
The other comment you made that I found interesting, and we have heard this...I had always presumed that a system would be in place to track the status of the obligations under the agreement. We have a number of agreements across the country. I know in our travels concerns have been raised. Is that specific to this agreement or do you have anything to indicate in any more general way that there is a lack of systems, as you stated in your opening comments in paragraph 14?
We cover this in our report on implementing the Labrador Inuit land claims agreement, starting really, I guess, in paragraph 3.85. We note there that the department of what was then Aboriginal Affairs and Northern Development Canada had a plan to expand their capabilities to track the obligations. At the time we did the audit, they had the treaty obligation monitoring system. We felt that they were still having problems getting all of the obligations into the system and weren't tracking what the benefits were from implementing the obligations. At the time we did the audit, then, we felt that the department was not sufficiently tracking the obligations associated with these treaties.
I want to turn now to the specific claims. As we indicated, there were good intentions.
You had eight recommendations. If you were going to be us in the next panel, which one of your recommendations would you deem to be the most important for us to question officials on to ask whether they have acted upon it?
I'll start by saying that when we make recommendations, you'll notice in any of our audits that we tend not to make many; we try to make just a few. In this case, I believe you mentioned, there were eight recommendations. When we make a recommendation, it's because we feel it's an important thing to put in place, and so we don't really try to rank the recommendations.
I think the issue is balancing off whether they can fix the issues we identified by implementing our recommendations or whether there is a need to go back to square one on what the relationship is going to be, but if they go back to square one, does that put everything behind again?
Fundamentally, I think it's important for the department to act on the recommendations, showing that they put together an action plan, presented an action plan to the public accounts committee on how they would deal with all of the recommendations, and said by what time they were going to deal with them.
I wouldn't try to identify any one particular recommendation as being important. I think what's important at this stage is for the department to demonstrate that they have implemented their action plan.
I said to Mr. Ferguson, earlier, that his French had greatly improved since the beginning of his mandate.
I congratulate you, Mr. Ferguson for the efforts you have made in this regard.
First, I will ask a very general question. I have been working on indigenous files for over 35 years, and I note that there have not been many improvements, and that is true at several levels. Despite the fact that Canada is one of the richest countries on the planet, the the living conditions of indigenous peoples are still at the very least deplorable, in my opinion.
Subsection 8(1) of the Auditor General Act gives you the power to study pressing or urgent issues and to report on them. In your recollection, has that provision ever been invoked regarding the living conditions of indigenous peoples in Canada?
Several witnesses who have come before us during the study have pointed to the necessity of having a human rights framework for aboriginal issues in this country. I remember that in the Tsilhqot'in Nation case, the Supreme Court said that the provisions of part I of the charter, and some provisions on indigenous rights in part II, were related, or sister provisions.
Do you think we should seriously consider the possibility of adopting the United Nations Declaration on the Rights of Indigenous Peoples as a framework in this country, in light of all the outstanding issues regarding the rights of indigenous peoples, treaty rights, as well as all of these processes, including the Comprehensive Land Claims Policy? Should we in future have a human rights framework, a human rights approach in our country, in your opinion?
I believe human rights are part of your mandate as Auditor General?
Once again, our role is to conduct audits. And so I do not wish to, nor can I, comment on government policy. Our role is to examine the programs and determine if the departments implement them as planned, and if they respect their policies and the way they are supposed to deliver those programs.
I think it is up to the committee to choose the framework needed to study those matters. What is important to us is that the departments make commitments and determine how to deliver these programs. It's important that they respect their own policies so that the programs work as expected.
I think that generally speaking, our role is to determine whether departments respect their own procedures and policies in those programs, and to make sure that they do.
One of the things that has always troubled me as a parliamentarian is the fact that every year, we don't know exactly how much money the federal government spends to fight with aboriginal peoples in court. I believe you and I had a meeting about this.
Do you not think that in the current era of reconciliation, this is one of the issues we should examine now?
I think it is important to examine all apsects of a program and assess the results, but also to assess the costs incurred to obtain those results. I think that when a program is assessed and audited, it is important to identify the results and costs, but it is also important to determine if resources were optimized and if it is reasonable to spend a certain amount of money to attain the desired results.
My questions are around paragraph 5 of your opening remarks, to start with. At the end of the paragraph, it says, “Furthermore, the Department stated that every reasonable effort would be made to achieve settlements through negotiations. However, we found that more claims were either closed by the Department, or ended up in litigation, than were resolved through negotiation.”
Did you receive a response from the department as to why they felt it was their prerogative? How does that look? How does the department just close claims? Wouldn't all claims have to go to litigation or to some form of mediation?
We did provide a definition of “closed claim”, which is:
A claim that is closed during negotiations because a First Nation does not accept or respond to a settlement offer, or decides to withdraw its claim. When a claim is closed, negotiations cease, but the government's outstanding lawful obligation remains, and the claim is unresolved.
That was what happened, for example, again in the cases of the small value claims that I referred to, where the government provided an offer, but without an additional offer of negotiating the amount that was offered. Many times the first nation just didn't accept or didn't respond to that, so the department determined those to be closed, and we felt it wasn't reasonable to refer to closed cases as essentially something that was a success. To us, a case needed to be resolved so that parties said, “Yes, we have come to the end of this and we have reached an actual settlement”, rather than, “We've closed the case”, which means that it's still out there; the first nation wasn't happy, perhaps, and hasn't responded. That's not really a good measure of success.
We haven't gone back to do a follow-up audit. Again, we tend to give departments a few years to actually put in place the changes they've said. I think that in the department's action plan a number of the actions have dates that go into 2018 before they say they will be done. Again, I think it would be a reasonable role for this committee to see whether the department is on track to meet what it said it was going to do under the action plan.
In both paragraphs 7 and 8 you alluded to a lack of information, and also in paragraph 14, it states, “Lastly, we found that Indigenous and Northern Affairs Canada did not have an effective system to track the status of the federal government's obligations under the Agreement.”
I think Salma would agree with me, coming from the public accounts committee, that it is something we've seen as an ongoing trend, a lack of credible information and the ability of government to gather that information and put it into a form that's usable.
Do you think that contributes to the problems within the department as it pertains to this issue?
In terms of the obligations the department has under various treaties, obviously, for them to know whether the federal government is living up to its side of the treaties, they need to know what the obligations are. Having an inventory of those obligations and knowing who is responsible for them and whether they are being done, and whether they are achieving what they are supposed to be achieving I think is very critical to the department's management of the federal government's obligations under these treaties. I think that is very important.
In terms of the specific claims process, the issues we raised there, I believe what we were concerned with was that the specific claims tribunal, which is at the end of the process, had rendered 14 decisions on specific claims that had gotten all the way to the tribunal and I believe in 12 of those, they found in favour of the first nations. Our concern was that we didn't see any real evidence that the department was, for example, looking at why the Specific Claims Tribunal was so often finding in favour of the first nations, and whether that is something they should be going back and considering in their process of negotiation and making offers.
I have one more question for you and then I think that will be it for me.
I want to ask a question in regard to this entire situation. I've had the opportunity to speak with you on several occasions about other contentious files in other departments. Do you feel that this is a good example of perhaps a department or a portion of a department that could require more frequent audits?
Within the public accounts committee we do a lot of talking about follow-ups and how the cycle lends itself to being so onerous that by the time you get through an audit and then you get to a follow-up audit it's so far down the road that committee members have changed and perhaps.... We work in large six-year and eight-year cycles. Do you think that more frequent audits by your department are something that could be or should be seen as a benefit?
As I said earlier, we're in this department a lot. We do a lot of audits that touch on the indigenous files.
To be able to keep doing audits and go back and do follow-up audits on everything we've done, that would take a lot of resources. I think there need to be multiple ways of getting at this so that.... Yes, we will go back and do follow-up audits from time to time. The department has issued an action plan for what it intends to do on both of these audits, on the specific claims and on the Labrador Inuit land claims.
I think if this committee or the public accounts committee or whatever used part of their time to hold the departments accountable to explain whether they are doing what they said they were going to do and how they can demonstrate that, perhaps that could help add as much value as an additional audit.
Madam Chair, we didn't touch on it in either of these audits, though we did come across that issue in another audit we had done, which was on Governor in Council appointments. I have forgotten the date of that. It would have been somewhere in the 2015 or 2016 time period when we did an audit on Governor in Council appointments.
It was in the spring of 2016, I'm being told.
Certainly in that we did identify the problem that there were not enough judges being appointed to the Specific Claims Tribunal.
Good morning, Madam Chair and members of the committee, and thank you for inviting me.
I am accompanied by Heather McLean, who is the director general of the policy development and coordination branch, and Stephen Gagnon, who is the director general of the specific claims branch. I am the senior assistant deputy minister responsible for treaties and aboriginal government. Both of my colleagues report to me.
I want to acknowledge that we are meeting on traditional Algonquin territory.
I am here today to provide some clarity and information about our federal negotiation processes, the roles and responsibilities of federal negotiators, and how we are working with our indigenous partners to make our processes more efficient and responsive to priorities.
As I'm sure you are all aware, modern treaty negotiations are very complex undertakings. They address a broad spectrum of subject matter, such as the formation of new governments, ownership of lands and resources, and new fiscal relationships with the federal government.
The average negotiation process from framework agreement to final agreement takes approximately 18 years to complete; close to two years of that is spent seeking federal approvals.
For several years now, our indigenous partners have called on us to streamline the federal approvals process to expedite progress in negotiations, and Canada has recently taken steps to create efficiencies in the federal mandating and approval process for section 35-related negotiations.
The Minister of Crown-Indigenous Relations can now sign preliminary agreements, such as framework agreements and memoranda of understanding, as well as agreements in principle that are within the federal policy framework, on the recommendation of the federal steering committee. The federal steering committee is a group of assistant deputy ministers from the departments that are most implicated in treaty negotiations.
In addition, the minister can, with the support of the negotiating parties and the recommendation of the federal steering committee, expedite negotiations to the final agreement stage by skipping the agreement-in-principle stage or converting a substantively complete agreement in principle into a final agreement. These steps will help maintain momentum at negotiating tables and serve to truncate the federal role in the negotiation process, which should help indigenous groups benefit from agreements sooner.
With respect to the role of federal negotiators in the negotiation process, we know that positive negotiated outcomes are best achieved when the parties at the table can build a relationship founded on trust and respect. We recognize that we need to ensure consistency in federal negotiation teams, and we do make best efforts to keep the same negotiators at the same tables for as many years as possible.
Based on our records, we try to estimate the time a negotiator spends at a table, and the average is around seven years. We do realize that when we take into account that the actual negotiation process for a modern treaty and a self-government agreement can take somewhere between 15 and 20 years, that does mean there is some turnover of negotiators. We want to minimize the number of times we have turnover, because it can mean lost momentum at the table, as well as significant time spent to bring a new negotiator up to speed.
Ultimately, we know that we have to find ways to do agreements more quickly and more efficiently. In an effort to do so, we began establishing recognition of indigenous rights and self-determination discussion tables in 2015. These negotiations are founded on an interest-based, recognition-of-rights approach, and they allow Canada and indigenous groups to co-develop negotiation mandates for cabinet approval. It's a completely different way of having the conversation. The discussions aim to produce results much more quickly by homing in on key shared priorities and finding ways to accelerate, or presenting alternatives to, the process requirements that come with predetermined federal mandates.
I would also say that we are looking at a variety of instruments now, and we don't have a narrow definition of “treaty”. Agreements can be on specific subject matter; they don't have to be all-encompassing, on everything.
We have signed 15 preliminary agreements with indigenous groups through the rights recognition discussions.
We remain committed to working with our indigenous negotiation partners toward more collaborative, flexible mandates and processes to address key issues in negotiations and to help all parties realize the benefit of these agreements more quickly.
That concludes my brief remarks. We are pleased to take your questions.
Given the time frame for the handling of the comprehensive claims, it seems possible that the financial state of the claimants could fluctuate, especially where the debt load is concerned. How does the current comprehensive land claims system accommodate for the debt amounts of the indigenous communities involved with the claims? Do you have any suggestions for how the comprehensive land claims process may be further updated or refined to better address the financial standing of these communities before, during, and after a claim has been processed?
The funding that's currently provided is a mixture of loans and contributions that are not repayable. We've been aware for a number of years now that there are issues around the accumulation of loan debt, particularly as some of these processes have continued on for so many years.
We are looking at ways in which we can address the issues associated with loan debt. I think that there is certainly a fairness concern. The original intent or the original thinking behind this was that loans would help to ensure that everyone at the table would have a certain discipline in moving the negotiations forward. I think there's a clear recognition, based on the experience over the last 20 to 30 years, that that's not the case. The loans don't actually provide any real incentive to move things along more quickly at the table. In some ways the issues are more specific around how we've approached mandates and the kinds of bases on which we've had discussions.
I think the totality of what we want to reform around that particular process includes even moving away from the nomenclature of claims and talking about them more from a recognition perspective. I think we understand that we need to do some real analysis around whether or not there's a different approach that we could be taking on funding that would address the loan burden and the fairness issue around that loan burden.
As we know, the claims process incorporates claims by dozens of indigenous communities across Canada, and as a result, the process must incorporate and be sensitive to the values and the needs of the communities that are involved in that. Does the claims process for both specific and comprehensive claims have mechanisms in place to deal differently with these respective communities? Do you have any recommendations to improve the flexibility of the claims to increase the efficiency and satisfaction level of the claims?
They are very different processes, and they are very different types of discussions. Again, I don't like the label of comprehensive land claims. What we're really talking about are treaty negotiations and self-government negotiations under that rubric, so that really is about self-determination. I think the way we would want to frame that work today, and the work we are trying to do, is to frame it as recognition of rights and self-determination. I think that's what we're trying to do there. Specific claims is a different category altogether, in which you're trying to address the historical wrongs of the government and figuring out what is the best way to compensate for those wrongs. They are two completely different processes with, I think, two completely different methods of negotiation and dialogue around how we're trying to approach them.
I do think that for both we are in the middle of trying to figure out with our indigenous partners how we want to actually reform these processes so that they work better for everyone. I think we recognize that they take too long. Whether it's a self-determination dialogue, whether it's a specific claim negotiation, it takes too long. They are too adversarial in the way we have approached them in the past, and we are trying to find ways to reform those processes.
With specific claims in particular, there is a partnership we have with the Assembly of First Nations as well as a number of other indigenous groups, including the Union of British Columbia Indian Chiefs and others from across the country, where we are trying to develop together what will be the reforms that are necessary to that process in order to put it on a footing that is more commensurate with the type of relationship we're striving to achieve with indigenous people.
At the same time, the work we're doing through the rights recognition and self-determination tables is, I think, piloting ways in which we can have a completely different approach to the question of self-determination and how to expedite agreements in a much more efficient way to enable them, whether it's first nations, whether it's Métis, whether it's Inuit, to take on areas of jurisdiction and responsibility that they want to take on sooner than having to wait for a 15-year or 20-year process.
Mr. Wild, thank you for recognizing that we are on unceded Algonquin territory. My Algonquin constituents would look at some of the issues that are currently being discussed with the federal government as they have a specific land claim process, but there's also an ongoing discussion around their proper role vis-à-vis Parliament Hill, Supreme Court, and lands proximate to downtown.
How would you characterize that type of discussion in relation to the comprehensive land claims and the specific claims? Is it some kind of sui generis process? How would you describe that to the people of Kitigan Zibi?
Certainly the negotiations we have under way with the Algonquins of Ontario is a comprehensive land claim dialogue. There is also interest in having a self-government agreement as well, but the focus has been on resolving the land claim first. Separate from that, a discussion is going on with Kitigan Zibi that is under our new process part of rights recognition and self-determination dialogue that we have started with Chief Whiteduck.
Again, I think our approach to those dialogues, while originally fairly distinct, are now coming together in that the approach really is one of sitting down and trying to have an interest-based discussion, hearing what the indigenous community is saying are their priorities and interests, and then working together to develop the kinds of mandates we need to be able to be responsive to those interests. That's really the focus of how we're trying to have those dialogues now, whether it's under the kind of old comprehensive land claim policy or whether it's under the recognition of rights and self-determination tables.
As Joe just said, we're putting a lot of our eggs in the working group we have, being facilitated by the AFN. I can't tell you that things have changed drastically yet, but I can tell you that I think it has been a constructive and productive process. We are working at it, but we haven't made or received recommendations yet on how to move forward. I think things are going well, but it's anecdotal at this point.
I don't have much more, but I do think things are going well.
When we started this work we focused on four major areas: claims over $150 million, public reporting, funding for negotiations, and the use of mediation. The context, as I interpret it for a lot of things that were in the Auditor General's report and other reports, was that in 2007 when we launched Justice at Last there was promise of more co-operation. Once we got going, Canada went into its shell and didn't talk to people anymore. Most of the recommendations in the Auditor General's report and others were that we needed to get out there and start speaking to people, start communicating, start listening.
We have been doing that. I think we have made progress. It's self-serving for me to say that I think it's going better. I'm hopeful that my colleagues on the first nations side would say there is better communication now than there was. That was a major first step for us to get that kind of thing going.
Can the lack of trust between the two groups ever be repaired? Let's start there. I was part of the tour we made to Vancouver, Winnipeg, Belleville, and Quebec City, and wherever we went, that was the number one issue. They do not trust the federal government, and I don't know if that can be repaired.
I want to know your views on it because it was the topic of conversation.
I absolutely think it can be repaired. I think it's about a couple of things.
One, I think it is about approaching the relationship from the right perspective. That means approaching the relationship from the mandate that we've been given as public servants from the Prime Minister to renew a nation-to-nation relationship based on recognition of rights.
Yes. What is nation to nation? Can I ask that? Because the Premier of Quebec has said he would like an explanation of what nation to nation is. You have provinces and territories in this country that have no idea what nation to nation is, yet the Prime Minister is going around this country talking about nation to nation.
What is nation to nation? Can you fill us in? The premiers of this country have no idea what that means.
I wouldn't characterize all premiers as being in the same basket in terms of their understanding of nation to nation, based certainly on the conversations that I have with my provincial colleagues.
Nation to nation is, I think, getting at the idea that you have to approach this relationship based on recognition of rights, respect, co-operation, and partnership. It means that there is a concept of indigenous nations. Some of that has been severely disrupted through the actions of past governments when the Indian Act and the band system were established in this country.
It really is about how you work with first nations as they work through their own processes within their communities to figure out whether or not there is a larger collective than a band that speaks on behalf of the section 35 rights holder of that community. That collectivity is what we would recognize as a nation. We're not prescribing what that collectively means.
Obviously, there's been work done on this in the past. There was a royal commission, an aboriginal peoples report done in the 1990s that talked about it being around language groups. That may be one possibility. There are other possibilities as well. We're not precluding or closing the door to any concept. We're saying that we think our role as a government is to support first nations, and having that dialogue internally. They can then work out within their communities what they think those groups would be that represent larger collectives of rights holders and that they want to recognize as being their governments for the purposes of having a nation-to-nation dialogue with Canada and with a province or territory.
In Winnipeg, we were talking about the additions to reserves, the process in Manitoba, because we were in Manitoba at the time. It also affects my province of Saskatchewan.
Where are we on these treaty land entitlement claims? How many of them are outstanding? You've talked about time here. Time seems to be precious for years but.... What is the average time required, then, for resolving some of these claims?
I will have to get back to you on the numbers around the treaty lands entitlement. I don't have those numbers at my fingertips, nor do I have the average time it takes to resolve them. I can say that we've made significantly more progress in Saskatchewan than we have in Manitoba. I think we are continuing to look at ways in which we have to do things in order to ameliorate the processes in place in Manitoba, in particular.
Good. There seemed to be a lot of frustration in the province of Manitoba. We certainly felt that and yet, in my province of Saskatchewan, it seems to be a little bit more reconciliation, if I might say so.
Well, it's interesting. I know the Auditor General's office follows them very closely and I applaud you for that.
One size doesn't fit all. There's the other thing. You're talking about doing things quickly and more efficiently. Be careful with that. I understand. We went to places where there are agreements that have gone on for 30 and 40 years, but sometimes when you do it quickly, and the auditor did talk about that, you miss something. When you go quickly, you're going to miss more and then we're going to have more issues. There has to be a balance.
I am originally from the region where Canada's first modern treaty was signed, in 1975. It took about one year of negotiation despite all of its complexity. In 1974, we signed an agreement in principle of about 14 pages, and in 1975, we signed the final agreement, which had about 500 pages.
As for the negotiations that concern us, it's not a matter of complexity in my opinion, but rather a matter of political will and good faith, as is often the case.
You said in your statement that it takes about 15 to 20 years to conclude a modern treaty. Why then have the negotiations with the Innu and Atikamekws in Quebec now gone on for over 30 years? How do we explain this delay, where negotiations last almost twice the average time?
You are correct. I don't have a good reason to provide that explains why the negotiations with the Innu have taken 30 years.
In my time in this position, I would say that has been one of the biggest challenges, to unpack why it takes so long in some communities. I think some of it has been the way that we had approached the fundamentals of these discussions. There has been a lot of criticism about the comprehensive land claim policy, as being a policy about rights termination, and I think we've had issues, in that we haven't been able to approach negotiations from a truly interest-based approach. Negotiators were going out with pre-defined mandates and pre-defined policy frames, so that when a community would present things that would diverge from that, it would bring everything to a halt, while negotiators went back and tried to sort out whether or not they could get a change to mandate, in order to address the interest that was put before them.
I think that the approach we're trying to take now is to start with a blank page. With some fundamental understandings around the UN declaration, particularly around section 35, and what it means to take a recognition approach, let's work together to build what would have to then be the mandate that I would go and seek from cabinet. I think that will make things go significantly faster because it means that we will have had a more thorough conversation about what the actual interests are from the indigenous group's perspective.
I don't have a good answer for how we've gotten to the 30 years that we have spent with the Innu. My hope is that we will not have to spend another 30 years.
I think I would say that if you looked at what the Innu were looking for at the table and at what the scope of the mandate was that we had at the table, you would see that gap was significant and definitely part of the issue.
That's not just a money issue. I want to say that it's about more fundamental things, as well. Those are challenges to sort out sometimes, and I think we are working at trying to figure out ways to address some of those challenges.
Yes, I would say definitely it is at least partially a mandate issue. Some of it is policy approaches. In some cases, it goes to expectations around how decision-making is going to work in the community. We have had issues where the requirements we have around community ratifications have caused problems and issues.
There's a whole host of different things that I think contribute to it. I would say that what underlies most of that is a failure on our part to have appreciated that we need to approach these negotiations from the perspective that we're building an agreement to act as a bridge between that indigenous community system of governance and Canada's. Instead, we've kind of taken a view of everything being from our perspective, and we build agreements on that basis. I think that is part of a failure in how we've gone about the process, and I think that contributes to the length of the process.
Just to finish off, as my time is running out, I'm intrigued by your choice of words. You are talking about a rights-recognition approach that you now use. I think, personally, that's already a constitutional obligation on the part of the government with respect to indigenous rights in this country, and I would make a distinction between rights recognition and respect for the fundamental rights of indigenous people in this country. Recognizing the rights of indigenous people is already a constitutional obligation as determined by, in particular, the Supreme Court, the highest court of this country.
I want you to explain that distinction between rights recognition and respect for rights.
The distinction, I guess, would be that the way the comprehensive claims policy and the inherent right policy were built was on the basis that the indigenous group had to prove the scope of the right they were seeking to have recognized in the treaty. The starting premise was that they had to prove what the rights were that we were actually going to be discussing as part of it.
I think a recognition approach is saying that we're not starting from an assumption that there is nothing there. We're starting from the assumption that there is a full box of rights, and we now need to talk about what they see as being the priority rights and how they see the implementation of those rights. That should be the nature of the discussion.
I think that gets to the respect part. It is about focusing the conversation on an implementation conversation around the right, as opposed to focusing it on defining the scope of the right for all time immemorial. I think that's been the failure of the prior process. It was focusing too much on that question.
That ends our question period for you, MP Saganash.
We now have two more speakers, by agreement, to conclude the public session. They will be MP Anandasangaree and MP Viersen. Then we will have a short in camera session where we'll talk about committee business.
I have some very specific questions. The first is with respect to extinguishment of rights. As Mr. Waugh said, we have gone across the country, and one of the things that came up over and over again was the issue of extinguishment. Is that something that Canada is now insisting on, or from a policy perspective, is it something that's now off the table with regard to the negotiations that are currently coming to finality?
I think from Canada's perspective, certainly in the modern treaty era—so post-1970—none of what we were doing was about extinguishment, but we understand that from certain perspectives some of what we were doing looked like extinguishment.
What we have tried to do in the approach we're taking with the recognition of rights of self-determination tables is to focus more on how to implement the right versus try to define the scope of the right. We think that helps to reduce the perception that this is really about extinguishment.
I want to be really clear that the government mandate I have, and the policy direction from the government, is that I am not in the business of extinguishing rights. I am not in the business of rights termination. That is not what we are trying to accomplish through the tables and the dialogue we are having. However, we are, I would say, sensitive that some perceive it in that way.
Mr. Wild, across the country I would say over a dozen negotiators and nations that have been in negotiations have confirmed that this is something which the Government of Canada has insisted on. Is that something you're no longer pursuing as a demand in terms of final agreement?
If you're referring to the approach that was taken to what they call certainty provisions and the notion of full and final agreements, our policy has shifted. Certainly, we are open to a broad swath of agreement types, and we no longer insist that the agreement has to be full and final. As I say, we've moved away from the idea that the purpose of the agreement should be to define the full scope of the right in that way. We are trying to build agreements now that have built into them that concept of periodic review or an orderly process that allows the parties to revisit how we have described the implementation of the rights to ensure that these agreements are working for both parties and can evolve, as the governance of both parties will evolve over time.
One of the other major concerns that came across, and you've identified it in your statement, is with respect to changing negotiators and negotiating teams. I believe you said that seven years was the average. We've heard that, in a matter of 20 years, they've had seven different negotiators. I think there's a range there, obviously, and you're talking about the average, but some may have different experiences.
How do we change it to the point where we have consistency in negotiation and negotiators? Ultimately, the individual who is seized of the file is the one who brings it to conclusion, but if you keep changing the person every few years.... Obviously with career development and so on, that will naturally happen. How do we mitigate that, and how do we ensure that there's some consistency in our negotiating position? How do we ensure that we don't keep changing negotiators every few years? Even if it's seven years on a 20-year agreement, you're literally set back three years right off the top.
We do not have any policy or practice of just randomly changing negotiators after a certain amount of time. If there's a change in negotiators, it's either because someone is taking a form of leave, have had a promotion, have decided to pursue employment elsewhere, or have retired.
I think there's a balance in this that one has to be careful of. We do have examples, I think, of negotiators who have been on files for too long, or they've had the same table for 20 years. That causes me concern about why we're not continuing to move things forward.
We don't rotate, and there is no planned rotation. The changes occur when people are basically making a personal decision in their own career planning about what they're doing. It's kind of hard to figure out, well, what is.... I get uncomfortable about what the right length of time is for negotiations to take, too. All of these take the time that they take, and it's going to vary considerably depending on the parties and the interests that you're trying to address.
Just to be clear about that, I think we try to maintain stability. The only time we make changes is when we're forced into that situation because there are things going on. Sometimes we get requests from our negotiating partners to change the negotiators because they don't like how something is going on in the room. Those are very difficult conversations, and we try to work our way through them, but we don't have any practice of just randomly switching people out.
You indicated that 20 years is a timeline for comprehensive claims, and obviously for specific claims, it's a set process. Twenty years is a generation. The vast majority of the people we heard from are well above the 20-year mark. We heard from a group that it's 20 years from the time of the agreement in principle. There is a need to have a window, maybe 15 years or something, that will have an impact on the people who are negotiating. We had a chief from Quebec who is around 40, and they've been negotiating for well above his time on earth. I think there is a need to have some timelines.
Is there a number that you would be comfortable saying would be reasonable and would come to some conclusion?
I think it's really hard to put a number on there. I think it's more about trying to talk about the forms of agreement we're trying to get to, and whether we can fix that to get to things faster, rather than requiring these fully comprehensive agreements.
I know I give you a rough time. I'm sure my minutes are always smaller than everyone else's.
An hon. member: Oh, oh!
Mr. Arnold Viersen: Thanks for being here today. I appreciate your taking a crack at describing nation to nation. That's probably the most articulate description we've had on nation to nation up until this point.
I'm going in a similar vein. We see the eight recommendations from the Auditor General. We just looked at some of our numbers. Back in 2008 there were over 800 specific claims. Where is that number now?
We have 230 in negotiation. We have about 130 to 140 in assessment, so we're determining whether or not we agree that there's an outstanding lawful obligation. I think you heard the Auditor General refer to closed files, and so a number could go to the tribunal, but haven't. That number we think is in the range of about 400, either because we've rejected the claim as a claim or the three-year period for negotiations has expired. I don't want to put words in anyone's mouth. I think some first nations groups would say you haven't really gotten rid of them, that you've just disguised them as something else.
One of the things we're trying to address in the working group is to say we should at least have a common understanding of what all these terms mean so we know what we're having issues about.
As Joe said, specific claims are usually more precise. An action or series of actions caused harm to a first nation. Generally speaking, they're more discrete issues, whereas in a comprehensive claim you're talking potentially about self-government. You're talking about lands, resource sharing, management, co-management, that sort of thing, so I think naturally those are going to be a little more complicated to deal with over time.
Negotiation teams from the department, as well as negotiators from other government departments sometimes, for example, the Department of Fisheries and Oceans or Environment Canada, and then it's whoever is representing the indigenous groups we are negotiating with.
If they're in British Columbia, for example, they will happen in British Columbia. I have an office in British Columbia of about 75 people or so, and they look after the negotiations that cover British Columbia, as well as the Yukon. The rest of the country will normally be split: some sessions will be held in the home communities and then sometimes they will come to Ottawa. But the rest of the negotiators are located here out of Ottawa.
I don't know that you would. I think that gets to a root issue that we have in that there's not enough information available for Canadians to understand some of this work and what it means to have a dialogue based on recognition of rights, on moving to actualize the vision of self-determination of indigenous people. We have a website for specific claims that talks about the claims and where they are in the process. We also have a website that lists those in the treaty or self-determination dialogues.