AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 3, 1998

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[Translation]

The Chairman (Mr. Guy St-Julien (Abitibi—James Bay—Nunavik, Lib.)): Order please.

Today, Tuesday November 3, 1998, pursuant to Standing Order 108 (2), the committee continues its study of chapter 14 of the September 1998 report of the Auditor General of Canada pertaining to the Department of Indian and Northern Affairs, specifically comprehensive land claims.

We welcome from the Department of Indian and Northern Affairs Greg Gauld, Director General, Comprehensive Claims, and Mr. Terry Henderson, Director General, Claims Implementation Branch/Claims and Indian Government.

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Do you have an opening statement?

Mr. Greg Gauld (Director General, Comprehensive Claims, Department of Indian and Northern Affairs Canada): Yes, I have, Mr. Chairman.

The Chairman: Kindly begin then and we will follow it up with a question period. You have 10 minutes.

Mr. Greg Gauld: Mr. Chairman, ladies and gentlemen...

The Chairman: One moment please. Mr. Iftody.

[English]

Mr. David Iftody (Provencher, Lib.): Thank you. Before we begin, on a point of order pursuant to the last meeting of the standing committee, with the representations that were made by the group from Quebec, I was going to submit to the chair that there was also a group represented by Vice-chief Sydney Garriock from the MKO, who was at the back of the room for the entire proceeding. He was not acknowledged and also did not get an opportunity to speak.

I'm wondering if the chair would be so kind as to perhaps send a letter to him acknowledging that and apologizing for the fact that there was a mix-up and that we weren't able to allow him to speak or the MKO to make those representations. But we will hear them in Manitoba when we travel. If we might, Mr. Chairman, just as a point of courtesy to the northern Manitoba group represented here that day, could we send them a note of apology?

Thank you.

[Translation]

The Chairman: Thank you for bringing that up. The clerk has confirmed that this has been taken care of and that a note of apology has already been sent to the Chief. That was the proper thing to do. We are truly sorry for the mixup. Thank you very much.

Please proceed, Mr. Gauld.

Mr. Greg Gauld: Mr. Chairman, ladies and gentlemen, thank you for inviting us to address the committee in regard to the Auditor General's Report on Comprehensive Land Claims.

With the release of this year's Auditor General's Report we have looked back on the past 25 years of modern-day treaty making, and reviewed our progress during that period.

The report has identified some concerns about the way we have conducted business since the conclusion of the first modern land claims agreement in 1975.

[English]

As Minister Stewart noted in the House of Commons, we don't have the process perfectly worked out yet, but we are making progress. We remain convinced that negotiating treaties is the right thing to do, rather than allowing questions of aboriginal rights and title to be fought in the courts or across the barricades. It is in the interests of all Canadians to work out settlements which will benefit aboriginal people. These settlements will also reduce their dependence on outmoded arrangements which perpetuate their colonial status.

We are encouraged by the Auditor General's overall endorsement of our goal to settle land claims through negotiation rather than litigation. We're also encouraged by his assessment that those of us responsible for negotiations on the federal side are conducting ourselves in a spirit of fairness and with good intentions.

We agree with the Auditor General on several points. We agree that negotiating treaties in the 1990s is a huge challenge. We agree that the goodwill and political resolve of all participants are required to conclude settlements and that all parties to a treaty are accountable for the results.

We agree that settlements have been taking too long to achieve, but there are many complex factors which come into play in determining how long it does take.

We agree that in some cases aboriginal groups lack the capacity or expertise to cope with the demands of treaty and self-government negotiations as well as increasing levels of consultation on lands and resource developments.

And we agree there is always room for improvement in implementation monitoring and reporting practices and in the evaluation of the impacts of settlements.

[Translation]

The negotiation of treaties is an evolutionary process. With each new set of negotiations, we apply lessons learned from those that went before. Many improvements have been made over the course of negotiating the dozen land claims agreements which have been settled since the 1975 James Bay and Northern Quebec Agreement.

Yet, more improvements are required. We are preparing an action plan which will allow for consultation with our key partners to address the report's recommendations. Speaking on behalf of the Assembly of First Nations, Bill Erasmus has proposed that we sit down with them and work jointly to address the issues that the Auditor General has raised.

[English]

Today I'd like to provide you with information which will provide some background on the issues raised in the report along with a context for some of the things we intend to deal with in the action plan.

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The length of time required to negotiate treaties is an issue of concern to all involved in the process. However, as the Auditor General has recognized, there's no proven guideline to suggest the ideal length of time for concluding a settlement. Unavoidable delays in the negotiating of a treaty can occur when any of the parties need to reconsider their positions because of new political leadership, court rulings or other factors. Many first nations are currently rethinking their relationships with governments.

And other issues, such as litigation, environmental assessments or self-government initiatives, can divert their energies from treaty negotiations.

Furthermore, before approving an agreement reached at the table, each party must review it thoroughly before signing it. This includes community consultations for the aboriginal group.

It's not surprising that the process is very laborious, since these negotiations had the ambitious objective of bringing together people of different cultures within Canadian society. As well, the final product of the negotiations will be constitutionally protected, so we had better get it right the first time.

The Auditor General has identified one of the cornerstones of the process of managing land claims negotiations: the relationships among the parties. In partnership with aboriginal groups, provincial governments, and other stakeholders in some regions, we intend to explore ways to accelerate the comprehensive claims process and to deal with other issues of concern. New ideas have been put forward, such as finding ways of phasing in some of the opportunities normally provided by treaties along with the obligations which accompany them. We will further explore these ideas in the coming months.

Gathering Strength, Canada's Aboriginal Action Plan, announced by Minister Stewart in January 1998, is the federal government's response to RCAP. It sets out an approach for renewing partnerships with aboriginal people, for supporting strong people, communities and economies, for strengthening aboriginal governance and for developing a new fiscal relationship.

Consistent with this, we are working with aboriginal groups to review their capacity to conduct negotiations while at the same time undertaking other responsibilities such as providing advice to governments on proposed development on their traditional territories.

The federal government has addressed this issue in the context of the British Columbia treaty process by establishing a panel to recommend effective initiatives to enhance first nations capacity to deal with land and resource issues. Similar initiatives may be worth considering in other regions where consultations reveal the need.

Of course, any litigation in the realm of aboriginal claims is of concern. We obviously prefer to settle these issues by building clear understanding through negotiation, but the nature of this litigation and the reasons for it must be analysed. In some areas where no treaties have been negotiated, aboriginal groups are attempting to have a say in proposed developments which threaten to alter the landscape irrevocably. In other cases, lack of clarity has indeed led to disputes, such as lawsuits over the implementation of the James Bay agreement. But in the 23 years since that first modern treaty was concluded, I am not aware of successful litigation—in areas where land claim agreements are in place—based on assertion of aboriginal rights or title.

On the basis of our discussions with the Department of Justice, we're optimistic that the legal certainty provisions, which have evolved considerably since the extinguishment model of the early treaties, have been effective. We continue to work closely with our justice department colleagues and our other partners to find creative options to address this complex issue.

We believe we're also making a lot of headway in regard to the other type of certainty identified by the Auditor General: the certainty of results brought about by careful attention to implementation planning. In claims negotiations to date, it has been very difficult to put a price on land and natural resources. Real estate transactions over the vast expanse of the Northwest Territories have been almost non-existent, and mineral values are difficult to pinpoint in the absence of exploration.

As we gradually move our operations into areas of provincial jurisdiction south of 60°, there are more reference points available for estimating the monetary value of land. In British Columbia, the two levels of government have developed a methodology for “deeming” the value of lands in order to aid in assessing the relative contributions of each to settlements. It is now standard procedure to commission valuation studies when resource potential in a claimed area appears to be significant. We certainly intend to continue our efforts to find more precise ways to measure the value of treaty components during the negotiation process.

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We work closely with representatives from other federal departments and agencies in the treaty-making process. Negotiating positions are developed in consultation with these officials, and the papers tabled by other parties to the negotiations are circulated for review. In addition, negotiation teams meet regularly with interdepartmental committees to update them on negotiations and receive their comments.

The Department of Justice plays a key role in all treaty negotiations. Legal counsel are assigned full-time to negotiating teams to provide advice on chapters as they are negotiated and play a lead role in the final drafting of treaty documents. As well, senior justice department officials participate in a full review of framework agreements, agreements in principle and final agreements as part of the cabinet approval process.

We will consult our Department of Justice colleagues to review whether this process can be improved to ensure that the final legal review of each agreement is as comprehensive as possible.

The report highlighted the lack of implementation plans for some treaties. This is an example of an area where there's been much evolution. Treaties negotiated prior to 1986 did not include implementation plans. But since that time, the federal government has insisted that these plans be completed before a final agreement is approved. We have also negotiated implementation plans after the fact with two of the four beneficiary groups of the pre-1986 treaties.

The department, along with other parties and stakeholders, is working hard to improve implementation practices. A rigorous regime of implementation monitoring and reporting against implementation plans is currently in place. A consolidated annual report for public distribution and tabling in Parliament is prepared on the implementation of each completed treaty.

The Auditor General has suggested that the department's reporting of costs and financial information needs improvement. We have found that providing such information in adequate detail, yet in a manner that is easily understood, is a challenge. We do meet our obligations in terms of disclosure to Parliament. As well, annual reports on the implementation of each settlement agreement provide useful summaries of most settlement and implementation expenditures.

However, our aim is that our operations be transparent. We are prepared to undertake a review of our disclosure of financial cost projections and reporting related to claims to determine whether we can improve its informative value while still retaining clarity.

Finally, the report indicates that we should be doing more evaluation of the impact of treaties in those parts of the country where they have been concluded. How do we know we're doing the right thing? What are the economic benefits?

In the past, we have focused on fulfilling our obligations under the treaty provisions, but many agreements now call for comprehensive five-year reviews. The first has just been completed for the Gwich'in agreement signed in 1992. An evaluation of the economic measures provisions of the 1984 Inuvialuit agreement is about to begin, as is a five-year independent review of the Nunavut agreement, which includes an impact evaluation.

As we begin to deal with our successes and treaties become the norm rather the exception, we must begin to study their impacts more systematically. A full evaluation of the impacts of a treaty which takes into account all relevant factors would be a major undertaking, but must be considered. Questions that touch on the feasibility of such a project, such as the availability of baseline data, terms of reference and cost, would have to be worked out with all parties before making a decision to proceed on a particular study.

On the other hand, we do know, without having paid for a consultant to study the issue, that the James Bay and Northern Quebec Agreement paved the way for major hydroelectric development in Quebec. We know that Cree and Inuit communities have gained from the benefits of that agreement and that all Quebeckers have benefited from the opening up of the northern part of their province.

We know that unresolved land claims can raise legal barriers to development and lead to direct action. We also know, however, that removing some of the barriers to development does not automatically guarantee that development will occur.

We know that a history of colonial dependency has hindered the ability of aboriginal people to manage their affairs and to take their rightful place in Canadian society and in the Canadian economy. We also know that we will not erase centuries of history in one day with the signing of a treaty.

We welcome the opportunity to work in partnership with aboriginal organizations, provincial and territorial governments and other stakeholders in an effort to improve our practices. The Auditor General's report provides insights from a fresh perspective. And we welcome any comments the committee may wish to make as well.

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All of these contributions will help us to work more effectively to settle land claims in the interests of aboriginal peoples and all Canadians and will assist us in developing our action plan to deal with the Auditor General's specific recommendations.

That concludes my remarks. My colleague, Terry, and I will be happy to answer any questions you may have. Merci beaucoup.

[Translation]

The Chairman: Thank you. We will now go to questions. Mr. Scott.

[English]

Mr. Mike Scott (Skeena, Ref.): Thank you, Mr. Chairman. I have a number of questions.

First of all, could you tell me, sir, how many people, in total, work in the B.C. treaty office?

Mr. Greg Gauld: How many people in total in the B.C. office?

Mr. Mike Scott: Yes.

Mr. Greg Gauld: I don't have the exact figure for the B.C. office. Maybe we can get that to you. I think it's probably in the order of 95.

Mr. Mike Scott: I can't believe that we came here to talk about the subject today and... This is basic information that we would like to see as a result of the AG's report.

How many consultants work for you in B.C. on this issue?

Mr. Greg Gauld: How many consultants?

Mr. Mike Scott: Yes.

Mr. Greg Gauld: I'm sorry, I don't have that. I can get that to you.

Mr. Mike Scott: What's your annual payroll at the B.C. treaty office?

Mr. Greg Gauld: I think I have that.

Mr. Mike Scott: That's a start.

Mr. Greg Gauld: It's about $8 million.

Mr. Mike Scott: About $8 million. And that doesn't include consultants, I take it.

Mr. Greg Gauld: That's the payroll. That's salaries.

Mr. Mike Scott: What are the most senior people working in the treaty office paid per year?

Mr. Greg Gauld: The most senior employees?

Mr. Mike Scott: Yes.

Mr. Greg Gauld: It could be in the order of $100,000. I could get you—

Mr. Mike Scott: Is the lead negotiator for the federal government an employee or a consultant?

Mr. Greg Gauld: Nationally, some are consultants or on contract and some are employees.

Mr. Mike Scott: I was talking about the lead negotiator.

Mr. Greg Gauld: Yes, the chief federal negotiator.

Mr. Mike Scott: This comes about as a result of access-to-information requests a couple of years ago, which turned up the fact that Mr. David Osborn, the lead federal negotiator, was paid $372,000 in one year by the government for negotiations. Are you aware of that, sir?

Mr. Greg Gauld: I'm not aware of that figure.

Mr. Mike Scott: You're not. Are you aware—

Mr. Greg Gauld: David Osborn was a contract chief federal negotiator.

Mr. Mike Scott: He was a contract chief federal negotiator.

Mr. Greg Gauld: Yes.

Mr. Mike Scott: So he was not an employee of the department?

Mr. Greg Gauld: No. Some of our negotiators are on contract and some are employees.

Mr. Mike Scott: Is Mr. Molloy an employee or a consultant?

Mr. Greg Gauld: He's a contract chief federal negotiator.

Mr. Mike Scott: Are you aware of what his billings were last year?

Mr. Greg Gauld: I don't have the figures with me right now.

Mr. Mike Scott: Would it surprise you to know they were about $370,000?

A voice: Cheap.

Mr. Greg Gauld: Mr. Molloy, as you know, is a chief federal negotiator for several claims.

Mr. Mike Scott: Oh, so if he's doing several claims, then, of course he's more valuable and that's then defensible.

Mr. Greg Gauld: He's also perhaps the dean of our chief federal negotiators.

Mr. Mike Scott: How can the department claim to be in a position of being able to do this job when you're in an obvious conflict of interest? Do you not have a fiduciary obligation to aboriginal people?

Mr. Greg Gauld: Yes, we have a fiduciary obligation. In fact, the entire federal government has a fiduciary obligation.

Mr. Mike Scott: Right. So how can...? No, the Department of Indian Affairs, I would submit, is the lead government agency that has that fiduciary obligation.

Mr. Greg Gauld: As I understand it, from what the justice department has told us, the fiduciary obligation is an obligation of the entire federal government.

Mr. Mike Scott: How can you act in an independent or at times adversarial manner, which negotiations require, when you have a fiduciary obligation to these people?

Mr. Greg Gauld: Generally, the stance we take in negotiations is that we can satisfy the fiduciary obligation through clear, plain dealing and respecting the honour of the crown. It doesn't mean that we have to negotiate always from the perspective of the interests of the aboriginal people. It means that we have to have clean, fair, plain dealing at the negotiation table.

Mr. Mike Scott: I would suggest to you, sir, that at least the optics of that in British Columbia are that the Department of Indian Affairs can't do that, that you can't wear two hats at the same time. But anyway, we'll move on.

I've spoken personally with a number of presidents and CEOs of resource companies in British Columbia who flatly state that manner in which you are currently negotiating treaties is not going to lead to certainty but in fact to economic stagnation. I've seen an internal company analysis of a major corporation just last week which says that it doesn't contemplate making any investments in British Columbia for the next 20 years as a result. Are you aware of that?

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Mr. Greg Gauld: I'm not aware of that particular internal report. There was a report in The Globe and Mail this morning of a conference of CEOs in British Columbia, which took place yesterday, I believe. The chair of the conference, Brian Smith, the chair of B.C. Hydro, I believe, was saying, in fact, with reference to treaties in B.C., that they are extremely important for the business community and for all of B.C.

Mr. Mike Scott: Are you aware that Mr. Smith is a political appointee to the chair of that board, that B.C. Hydro is a crown corporation owned by the Province of British Columbia, and that the Province of British Columbia is in fact very supportive of this process? It would only be natural to assume that he would take that position.

Mr. Greg Gauld: My understanding was that coming out of that conference there was fairly generalized support from the business community for the process of treaty-making.

Mr. Mike Scott: Let's move on a little bit. Who is going to have prosecutorial authority after these agreements are in place if aboriginal governments misbehave?

Mr. Greg Gauld: Could you explain to me what you mean by prosecutorial authority?

Mr. Mike Scott: Well, sir, if a municipal government misbehaves, there are a number of remedies available to the provinces. As you are aware, municipal governments are creatures of the provinces and, in fact, can only exist at the pleasure of the province. The province has every right to step in in a situation of misbehaviour and put a receiver in place to manage the finances and/or it has the right to actually prosecute people who may be accused of wrongdoing.

Now, I'm not suggesting for a minute that there has been wrongdoing, but I'm asking the question. What happens in the event that... I'll use the Nisga'a agreement because it's the only one we have to look at. I appreciate it's outside of the B.C. treaty process, but it still establishes the thinking that is going on in British Columbia. Who is going to have the authority to prosecute if, in fact, these governments misbehave?

Mr. Greg Gauld: I'll speak to treaties generally. The treaties set out dispute resolution provisions—how disputes will be settled—and they may include, as a final stage, a reference to the courts. But basically the treaties seek to establish a new relationship, one that isn't a paternalistic relationship but a relationship between governments, and there are dispute resolution procedures set out for when issues arise—

Mr. Mike Scott: Then you would agree with the notion being proposed by some in British Columbia who are challenging the Nisga'a treaty and who have said that in fact the treaty contains provisions in a number of areas which say that Nisga'a laws will prevail over federal and provincial laws in the event of a conflict. I'm sure you're aware of that. So you would have to agree, then, that in order to break away from this paternalistic idea, in fact, the federal government has ceded sovereignty in these areas where Nisga'a laws will prevail.

Mr. Greg Gauld: No, it is not an issue of ceding sovereignty. Federal and provincial laws continue to apply. There are just questions related to dealing with issues of conflicts of laws which can be seen as issues of how we deal with infringements.

Mr. Mike Scott: But I would suggest to you, sir, that if you've ceded supreme legislative authority, you have in fact lost sovereignty in that area. You can no longer exercise any degree of sovereignty in that area where you have ceded.

Mr. Greg Gauld: That's not the position of the federal government—

Mr. Mike Scott: I know my colleagues on the other side probably aren't as familiar with this issue as maybe some of us on this side are, and I think it's really important that everybody understands what has taken place here. I think you also should—

Mr. Greg Gauld: I just want to reiterate: that's not the position of the federal government. I think that there is a court challenge now, as you mentioned, on this. This issue will be dealt with in the courts and I hesitate to speak any further on it for that reason.

Mr. Mike Scott: Well, does that mean then, sir, that you and the department would be agreeable to suspending the process of ratification of the Nisga'a treaty until such time as the courts have ruled on that matter?

Mr. Greg Gauld: No, it doesn't mean that.

Mr. Mike Scott: Oh. Well, what happens if the courts come back post-ratification—

Mr. Greg Gauld: I'm sorry. I can't speculate on this.

Mr. David Iftody: On a point of order, Mr. Chairman—

Mr. Greg Gauld: My role as a public servant is to provide information to the members.

Mr. David Iftody: —in regard to that particular section, there has been an appeal filed by the B.C. Liberal Party in British Columbia. It is now before the courts. I think it's quite incompatible for the officials to be commenting on this. Also, some of the questions raised by the member about outcomes of this court case are hypothetical, and therefore that line of questioning is inappropriate right now.

Thank you.

[Translation]

The Chairman: Do you have one last question, Mr. Scott?

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[English]

Mr. Mike Scott: Yes, I have some more questions. The charter rights of individual Nisga'a people are at least in question as a result of this treaty, because there are areas where Nisga'a law will have supremacy, as you've already acknowledged, and in those areas at least, it's certainly the opinion of some constitutional legal scholars that the Nisga'a will possibly be able to use the notwithstanding clause in our charter to relieve themselves of any obligation to abide by the terms of the Canadian Charter of Rights and Freedoms. Have you considered that?

Mr. Greg Gauld: I'm not equipped to reply to that question in this forum. In fact, the Nisga'a agreement was beyond the scope of the Auditor General's audit.

The Chairman: Monsieur Bryden.

Mr. John Bryden (Wentworth—Burlington, Lib.): On a point of order, Mr. Chairman, if I may make a suggestion, I'm very interested in this line of questioning, but I think the officials before us now aren't the ones who can provide the intelligent answers to it. I would suggest to my colleague opposite that perhaps he would like to move a motion or make a suggestion to the committee that we bring before the committee the appropriate justice officials in order to pursue this line of questioning.

I really sympathize with the witnesses. It's impossible for them to make these statements, although, on the other hand, I'm very sympathetic to my colleague because I find this line of questioning very interesting and I'd like to see it pursued.

Mr. Mike Scott: I'll acknowledge that my colleague has—

The Chairman: Last question.

Mr. Mike Scott: One more question, please?

The Chairman: Yes, a small question.

Mr. Mike Scott: Okay.

Do you have any overall timetable for resolving this issue in British Columbia at the present time?

Mr. Greg Gauld: The issue of land claims generally?

Mr. Mike Scott: The issue of land claims generally.

Mr. Greg Gauld: No, I can't give you an overall date. It's going to be depend on the progress of negotiations. As you know, we have first nations representing about 70% of first nations people in B.C. in the claims process at the moment. There are still people who have not accepted to come into a claims negotiation process and it is impossible for me to forecast how long that will take.

Mr. Mike Scott: Well, how do you intend to hold harmless people who are being very adversely affected at the present time by the lack of certainty...? In particular, I'm thinking of private property owners who have had their private property rights challenged and who will have to go to court with their own money to defend their good title against land claims. I don't see the federal government doing anything to support those people.

Mr. Greg Gauld: I can understand your concern for having treaties in order to provide certainty for all British Columbians, and that's certainly what we're attempting to do. Part of one of the reasons we have for trying to improve the treaty process is in fact to make it more attractive to first nations to engage in negotiations rather than use other recourses to get a settlement of any aboriginal rights and title they may have.

But we certainly see negotiations as the way to go. We're encouraging that. We're trying to bring first nations and other parties into the process, and we feel that's the way to bring the certainty you're seeking.

[Translation]

The Chairman: Thank you, Mr. Scott.

Before we go to Mr. Wilfert, I'd like to take a few minutes to adopt a motion concerning a trip by the committee to Whitehorse. Does everyone have a copy of the motion? We need to rule on it this morning because the committee responsible for standing committee travel is meeting this afternoon.

I believe you have a copy of it. I will turn the floor over to Ms. Christine Fisher because she is the one who prepared all of these notes.

The motion to be voted on today reads as follows:

That the Committee approve the travel budget of $______and that the Chair of the Committee seek authorization from the House for the Committee to travel to Whitehorse (Yukon), Yellowknife (NWT), Fort McMurray (Alta.), Prince Albert (Sask.) and Thompson (Man.) from Sunday, November 29 to Friday, December 4, 1998 in relation to its study of Aboriginal Economic Development.

You have also received a travel cost estimate from the Committee's Directorate. A total of 8 MPs and 5 staff members are slated to take part in this trip.

I'll let Ms. Fisher take this, since she is the one who prepared the file along with the Committees Directorate.

[English]

The Clerk of the Committee: Yes, the budget subcommittee of the liaison committee is meeting at noon tomorrow and this is our only opportunity to pass the budget, if the members so wish.

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You can see that there are three options for the air travel. Actually, option 1 is obviously not as economical as the others, but we found a good charter flight that would take us all the way from Whitehorse to Thompson at a very good price. Option 1 would give us a total for whole trip of $82,740.50. If members who are travelling would be prepared to use the travel points, that would bring the cost down to $61,768.50, and I think that gives us a slight advantage when this is proposed to the budget subcommittee of the liaison committee.

The Chairman: Monsieur Finlay.

Mr. John Finlay (Oxford, Lib.): Yes, I have a question, Mr. Chairman. I appreciate the work that the clerk has done. I want to know how I'm to distinguish option 1 from option 2. I take it that in option 1, when it says economy is from somewhere to somewhere, either we are not going to Whitehorse or we're not going to Yellowknife...or what? It doesn't make it clear where we're going in option 1 like it does in option 2, I think.

The Clerk: Yes. Option 1 indicates that we would take commercial flights from Whitehorse to Yellowknife and from Yellowknife to Fort McMurray. But because the time zone is not compatible with our program, it would be better to take a charter from that point. However, if we take a charter from Whitehorse straight through to Thompson, it's even less, so that's option 2. As I say, option 1 really was the first round. I think it would be better to decide between options 2 and 3.

[Translation]

The Chairman: Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): Mr. Chairman, I'd like to comment briefly on the motion. My problem is this: why are we interrupting our discussions with the witnesses to introduce a motion that requires some debate? I question the relevance of introducing this motion that this time. Why can't we wait until we have finished putting our questions to the witnesses before proceeding with this motion?

The Chairman: I have no problem with that, but I have to leave at 12:30 p.m..

Mr. Claude Bachand: So do I.

The Chairman: Fine then. If that's what you want, then there's no problem. We will continue the discussion. The thing is, we need a quorum to pass the motion.

Mr. Claude Bachand: I see.

The Chairman: If we wait until the end of the meeting and we don't have quorum, then were going to be in trouble. That's why I wanted to take five minutes right now to dispense with this motion.

Mr. Claude Bachand: Then with your permission, I'd like to comment on it right now.

The Chairman: By all means.

Mr. Claude Bachand: Personally, I think we should go with the more modest sum of $61,000. However, my problem is—and perhaps I'd have to arrange that with the clerk—I won't be able to make it on November 29 and 30. I could join you on November 31 or on December 1. I haven't checked my calendar. Are there 31 days in November?

The Clerk: No.

Mr. Claude Bachand: On December 1 in that case. I will arrange that with the clerk, but there is no way I can join the committee on November 29 and 30.

The Chairman: Mr. Wilfert.

[English]

Mr. Bryon Wilfert (Oak Ridges, Lib.): Mr. Chairman, in order to—

An hon. member: Question.

Some hon. members: Oh, oh.

Mr. Bryon Wilfert: This is actually Mr. Keddy's question, I know, but in order to decide whether or not it's feasible to go, what I would like to know is the program—who we are seeing, what the objectives are, etc. We're actually asking to approve something to go somewhere without really knowing what it is we're going to be doing. I know it's economic development, but in order to know whether to take five or six days out of my schedule, I want to know some specifics, and I would like those as soon as we can get them. You can pass a motion, but whether you get any takers will depend on the content, I guess.

For example, certainly for Whitehorse, Yellowknife and Thompson, all three mayors in those cities are very much involved not only with the FCM and the Standing Committee on Aboriginal Affairs and Northern Development, but very much involved with economic development and aboriginal peoples in their communities, and one of the things I would suggest is that I'm sure they would be very helpful and willing to participate at some point. But again, I don't know who we're seeing, what we're doing or what the program is. If that could be made available as soon as possible it would be helpful.

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And I assume that in option 3, then, we would fly from Ottawa or Toronto, depending on where we are, to Vancouver, and Vancouver to Whitehorse, on our own points, and then the same, I presume, for Thompson to Ottawa or back to Toronto.

Thank you.

[Translation]

The Chairman: Thank you, Mr. Wilfert. Go ahead, Ms. Wherrett.

[English]

Ms. Jill Wherrett (Committee Researcher): In terms of the agenda for the trip, we do have a tentative idea of who we want to see. Part of the problem, though, is of course that we need to get the budget before we can commit to seeing these people. We don't want to make any commitments as to who we might be seeing without knowing that we have a budget, which is why strict meetings have not been set up yet.

But the intent would be, for example, in the Yukon, to meet with the Council of Yukon First Nations to discuss economic development arising out of their land claims, along with other issues. And, as we did on our past trip, the intent is to speak to them about what other groups we might want to meet with there, like, as you suggested, the mayor. In Yellowknife, again, we would meet with the major aboriginal groups there. There's been some discussion of the BHP diamond project as well.

In Fort McMurray, we would meet with the major tribal councils in the area, and it would be the same situation in Prince Albert. In Thompson, we would meet with the northern Manitoba first nations about their economic development. That's very vague and general, I realize, but those are our intentions. Specific meetings won't be established until we know we have a budget.

Mr. Bryon Wilfert: When might we expect a tentative schedule in order to decide whether we're going? If the budget is approved today...

[Translation]

The Chairman: That is correct. We can expect to get the agenda once the motion has been adopted and the committee has approved travel plans. The agenda is almost ready. Our work is progressing nicely. I think we will be able to make adequate preparations before leaving, and you need to have all of the names of the groups that we will be meeting with. Go ahead.

[English]

Mr. David Iftody: Mr. Chairman, just on my colleague's point—

[Translation]

The Chairman: I'm sorry, ...

[English]

Mr. David Iftody: I'm sorry.

[Translation]

The Chairman: ... but Mr. Keddy was first.

[English]

Mr. Gerald Keddy (South Shore, PC): Thank you, Mr. Chairman.

Just for the benefit of moving this along quickly, I have no problem with using the travel points and I don't think most of the members here do. On a point of clarification, I'd like to know how many other committees use their travel points, just to see that—

A voice:

[Inaudible—Editor]

Mr. Gerald Keddy: They don't?

On that point, I'll make a motion that we approve option 3 as the cheapest. We can use our travel points, we can access it, and then let's get a proper list in front of us and look at the meetings.

And the other thing is that this may still be turned down.

Question?

[Translation]

The Chairman: That's a good question. Thank you, Mr. Keddy.

Is anyone in favour of Option 1? No one.

Is anyone in favour of Option 2? No one.

I will repeat the motion as it relates to Option 3.

That the Committee approve the travel budget of $______and that the Chair of the Committee seek authorization from the House for the Committee to travel to Whitehorse (Yukon), Yellowknife (NWT), Fort McMurray (Alta.), Prince Albert (Sask.), and Thompson (Man.) from Sunday November 29 to Friday December 4, 1998 in relation to its study of Aboriginal Economic Development.

So moved by Mr. Bachand.

(Motion agreed to)

[English]

Mr. Gerald Keddy: And the clerk will bring us the information on the other committees' travel, on how many use travel points, just for interest's sake?

[Translation]

The Chairman: Before we leave, each member taking part in the trip will get a report. It will outline the schedule and list the groups with whom meetings are planned. You will receive a kit. Thank you very much.

Mr. Iftody.

[English]

Mr. David Iftody: Thank you, Mr. Chairman.

Again, to pick up on the point of my colleague here, a commitment was made by this committee to undertake a study of economic development issues for aboriginal people in Canada. I made the point during the last debate a few weeks ago on this particular matter that if we were going to travel to eastern Canada, we had a duty and a responsibility to do that in the west as well. That was the first point and I think we agreed to that, so a discussion now about whether there's any merit in it or not is, I think, somewhat of a moot point. I think we have to do this and certainly make an attempt to do that as well.

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The second point, I think, is the one raised by my colleagues—and we should stick to this—that certainly if there is a precedent in other committees that members don't use their travel points... I have never used them for standing committee travel in the five years I've been here. It's not understood that they're normally used for those purposes.

I would want the committee to hold fast to the notion that the Standing Committee on Aboriginal Affairs and Northern Development is not less important than the committees for finance or agriculture or international trade or any of the other committees. I don't think that we have to start making apologies to any other committee about our budget.

We have some work to do, and if we have to do it then we carry it out appropriately. So we'll make those representations to the board officials. We will ask them to approve a budget and carry on with our work. But I think I know where Mr. Keddy is coming from in terms of making those observations. I think it would be unhelpful for us for the remainder of the work of this committee over the next term here to start stepping back from that principle, because once we do that, trust me, they will take every opportunity to make sure that we travel on our own money.

Thank you, sir.

[Translation]

The Chairman: Thank you. We now go to Mr. Wilfert.

[English]

Mr. Bryon Wilfert: Thank you, Mr. Chairman.

Mr. Gauld, I was struck by your page 5, your comment with regard to the James Bay and Northern Quebec Agreement that the “Cree and Inuit communities have gained from the benefits of that agreement”.

We're having some representatives in on Thursday, and we had mayors from Inuit communities along Hudson Bay in here last Thursday. Their observations were clearly that the benefits were not derived, particularly in terms of infrastructure and housing. To be quite frank, they painted a pretty bleak picture of those two areas and I think we all were quite disturbed at the comments. Mayors usually have a good sense of what's happening at the grassroots, so we have asked more officials to be here on Thursday to explain.

I was curious about your comment that they've benefited, particularly in the northern part of that province, when the mayors clearly did not share that view and gave us some very specific examples of that.

I might as well put all my comments on the table. Next, maybe this is something we could receive from the department for our clerk, with regard to page 4, “a rigorous regime of implementation monitoring and reporting”. I would like to get the mechanics as to how that is actually carried out in terms of knowing that in fact it has been done. What is the basis, what litmus test do you use in order to make sure that implementation is going according to what you understand?

Last, the Auditor General talked about costs and how financial information needs improvement. It is a challenge. My specific question—and again, this may be furnished in writing—is about the type of approaches you're taking to make sure that objective is achieved. And about the end of this whole process, when a land claim is completed, is it completed? Is it finalized? Or are both parties going to open it up again in the future? My question is, when is it over?

Because you can only go to the well once, and if you're going to go to the well, the question is—and I would concur with my colleague across the way—I'd like to know about finality, for all parties involved, including, of course, the taxpayers.

Mr. Greg Gauld: Can I take your last question first?

Some hon. members: Oh, oh.

An hon. member: Yes, please!

Mr. Bryon Wilfert: Whatever one you'd like to deal with.

Mr. Greg Gauld: And then I think my colleague, Mr. Henderson, would like to take the others on the implementation issues.

When is a land claim completed and when is it over? Basically, a land claim or a comprehensive claim agreement or a treaty establishes a new relationship between the parties. It does not end a relationship between the parties. There are many provisions in a treaty that establish ongoing obligations for all parties, including the federal party. So in that sense, the relationship doesn't end and the treaty continues to be implemented. Many of the aspects of the treaty can be and are completed soon after the treaty is ratified by all parties. Some may be one or two years down the road and some are ongoing.

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But what we do seek in order to complete a treaty is clarity, certainty, about who has what rights and obligations, and what we try to bring an end to is uncertainty about that.

Maybe I can ask my colleague—

Mr. Bryon Wilfert: I appreciate that and I understand that it would be ongoing. I guess the question is, when does the meter stop running?

Mr. Terry Henderson (Director General, Claims Implementation Branch/Claims and Indian Government, Department of Indian Affairs and Northern Development): Mr. Chairman, I might proceed with the response on that front as well. The land claim agreement does not bring an end to our relationship with the aboriginal groups. In fact, what it more clearly does is define that relationship. It does clarify ownership to lands and resources with respect to the original land claim that the aboriginal group made, but these then become modern-day treaties, and implementation of those treaties will endure. They will continue on a perpetual basis into the future.

So it's the responsibility of the various parties to those agreements, which have contractual and, in some cases, constitutionally-protected obligations, to ensure that those obligations continue to be fulfilled.

Mr. Bryon Wilfert: Well, Mr. Chairman, even in treaties of an international nature there is usually a financial bottom line. It may or may not be adhered to in the final analysis due to other circumstances, but there is a bottom line. I realize it's ongoing with new relationships. I have no difficulty with that. I just want to know this: when the final costs are in, are they final?

Mr. Terry Henderson: There are no final costs as such for implementation of the agreement. Settlement payments, which are the capital transfers that are made, have an end to them. Some have called them compensation payments in the past, but we prefer to call them just settlement payments or capital transfers. Under most of our land claim agreements, we tend to pay them out over a period of 14 years. The Nunavut final agreement, as an example, in current indexed dollars, is about $1.1 billion to $1.2 billion, which we will pay out over the 14 years. That would be the end of those settlement payments.

Implementation is another matter because of the ongoing obligations and the relationship established by the modern-day treaty. There will be funds flowing to the various regimes that have been established under the land claim agreements. In place we have institutions of public government, like land and water boards, environmental impact review boards—which are public government institutions—and other co-management bodies, and those bodies will continue to receive funds because they now represent a new regime of resource management and a new relationship with the aboriginal groups.

Mr. Bryon Wilfert: Mr. Chairman, I had better not ask any more questions, because they have opened up so many things that if we had time I would like to go over them, but I'm sure my colleagues will add to that.

In the other areas, could you be brief and just highlight the rigorous regime issue and the finance issue and the response, particularly with regard to—I know you weren't here for it—the comment about the James Bay project? We heard about some pretty sad cases last week, on infrastructure and housing in particular.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Wilfert.

Mr. Bryon Wilfert: Thank you, Mr. Chairman.

The Vice-Chairman (Mr. John Finlay): I'm going to move to Mr. Bachand.

Mr. Claude Bachand: Are you going to answer my colleague's questions, the last ones?

The Vice-Chairman (Mr. John Finlay): I think those questions are going to be dealt with by other members on one side or the other. Mr. Wilfert has had nine minutes and I want to get on.

Mr. Claude Bachand: Okay. Then it's my turn.

The Vice-Chairman (Mr. John Finlay): Right. It is your turn and we have to close at 1 p.m.

[Translation]

Mr. Claude Bachand: I have two questions. My first concerns court action.

I have always been very surprised to see how many lawyers are involved in negotiations and how much legal wrangling goes on. Very often, the chief negotiator gets his instructions from the Justice Department. I also see a parallel here with Supreme Court decisions. I brought these issues up the other day with the Auditor General.

Don't you find that the decisions of the Supreme Court have a direct impact on the evolution of the negotiations? Let me give you one recent example, the Delgamuukw ruling. Aboriginal groups are already beginning to refer to it in some of their negotiations, particularly in British Columbia and elsewhere in Canada.

• 1215

They are starting to say: “listen, some things have to change and we have to take a different approach to negotiations because in the Delgamuukw case, this is what the court decided, whereas in Calder, it found the following and in Sparrow, it decided something else.” In my opinion, the hands of both the Department of Indian Affairs and the Justice Department are tied somewhat by the decisions of the Supreme Court when it comes to negotiations respecting land claims and self-government.

My first question is as follows: Isn't the Department of Indian Affairs shirking its political responsibilities as far as negotiating is concerned, leaving it up to others, particularly the Supreme Court, to make rulings in this area?

My second question concerns the perception of certainty. Over the years, I have observed that Whites and aboriginals have a different concept of the word. For example, the Mohawks say that they always take into consideration the seventh generation. If we conclude a round of talks with them this year, this doesn't mean that they might not want to reopen the talks at some point in the future, because they always think in terms of the seventh generation, whereas we, the Whites, think in terms of notarized documents. Once we sign an agreement, then we are finished.

The problem is one of perception. Certainty for aboriginal peoples is a different concept. I realize that it is evolving. But, what alternative is there? We view the termination of rights as a certainty. Once these rights are terminated, that's that, whereas aboriginal peoples tend to see things differently.

How do you reconcile these two different perceptions of the notion of certainty?

Mr. Greg Gauld: Thank you for that question.

You asked me if the Department of Indian Affairs was shirking its responsibilities. I would have to answer no. Like every other institution in the country, we must respect the law of the land, a portion of which was set down by the Supreme Court. Perhaps we should consider everything behind the negotiating process...

[Editor's Note: Inaudible]

It's not that we're trying to define the aboriginal rights of a particular group instead of the courts. That is not our objective. Our goal is to forge a new relationship for the future and to bring the parties to negotiate—and I mean negotiate—rights that are appropriate, rights that aboriginal people require for the future and to which the other parties may agree. The goal therefore is to shape this new relationship.

Obviously, we will be guided in this process by court decisions, such as the 1973 Calder decision which recognized for the first time the existence of native rights under Canadian law, prompting the government of the day to undertake comprehensive negotiations. Clearly, this decision influenced the government's actions.

In the case of the Delgamuukw decision, obviously it created some expectations and aroused some concerns in the country, expectations on the part of First Nations and concerns among the third parties, industry and the like. Our position is that we must abide by the court's decisions. Judges have long been encouraging us to negotiate instead of going the court route. This is another reason for negotiating, for sitting down at the table together in order to forge a new relationship for the future.

As for the notion of certainty, you are correct. The two sides have different perceptions and perhaps different objectives. As you know, this has been a touchy subject for several years now. All kinds of studies have been done and a variety of consultations held. Our position today is that we are prepared to explore new options. Clearly, all sides have an interest in doing this.

If we consider “termination” in the narrow legal sense of the word, the government can no longer terminate rights. To terminate native rights means to unilaterally abolish them. Since the passage of the Constitution Act of 1982, the government is no longer in a position to terminate rights. There have even been some innovations in the legal formula to ensure that this remains a certainty.

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In 1986, another formula was introduced. There is yet another new formula in the draft final agreement with the Nisga'a. It is in keeping with the desire of aboriginal peoples to maintain some continuity with respect to their native rights. Natives are willing to have their rights modified in some way, but they are not prepared to see these rights abolished or terminated.

That's a good question and at the same time, a very difficult one. We're currently focusing all of our energies on dealing with this issue.

[English]

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Bachand.

Mr. Bryden.

Mr. John Bryden: Thank you, Mr. Chairman. I have several questions.

First of all, is self-government resulting in sustainable economic independence in any instance or does it indicate sustainable economic independence in any instance so far in the claims that have been concluded?

Mr. Greg Gauld: Self-government policies are relatively recent. Most of the land claims settlements to date did not have self-government provisions. There were provisions for institutions to manage or co-operate in the management of lands and resources. There was a form of self-government with the James Bay agreement through the Cree-Naskapi Act, but it was really a form of giving local government powers to the communities. Only recently have we begun to negotiate self-government in that sense, particularly since 1995, when the government announced its policy on the implementation of the inherent right to self-government.

We are concluding agreements in the Yukon and we're going back to some of the earlier claim settlements in the Northwest Territories to try to negotiate self-government arrangements. There is a self-government arrangement, as Mr. Scott pointed out, in the Nisga'a agreement.

It is a component of almost all our current negotiations. We don't have any experience of settlements that we can go back and look at to see what effects they've had.

Mr. John Bryden: So we don't know. This bears on the question: we're proceeding with a program without having evaluated how effective it is, at least in terms of economic independence. Certainly we have had anecdotal evidence here that it's not working with the Cree-Naskapi situation. As far as we can see, from what we were told here, they cannot afford to develop themselves. They have serious problems.

But I don't want to slow up things here. Another question is about the justice department. Is it the primary source for legal advice in the self-government negotiations and land claims negotiations? I take it our Department of Justice is the primary source.

Mr. Greg Gauld: Yes.

Mr. John Bryden: Okay, then let me ask you this. Is there, as far as you know, a policy that is held by the government or by Indian and Northern Affairs that defines for the Department of Justice what we do mean by ownership when we negotiate self-government and land claims with the various aboriginal peoples?

Mr. Greg Gauld: Is there a policy that defines what we mean by ownership?

Mr. John Bryden: Ownerships. I'm going on what Mr. Scott has said, because very frequently we've had people appear before this committee who talk about “them” versus Canada. I've brought several witnesses up short because I think the only governments in the country that regard themselves as speaking with Canada rather than with Ottawa or the federal government are the governments of the occasional separatist leader in Quebec. So I was much distressed and disturbed to find aboriginal spokesmen constantly talking about “our people” or “our nation” versus Canada.

That raises the point Mr. Scott is driving at, and that is, do you as an official know what we mean or what the Department of Justice's instructions are with respect to negotiating settlements that involve the transfer of ownership to the various aboriginal peoples?

Mr. Greg Gauld: I can speak generally. If you look at the settled land claim agreements, you'll see that there are certain areas of land given as part of the agreement to which the aboriginal party receives full title. Often the title is held collectively with other arrangements as to subsurface or surface rights.

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But generally you'll find that the bulk of the territory which was the subject of their original claim—or their traditional territory—is not part of the settlement that they get full ownership to; it remains crown land. So generally after a settlement you end up with probably the bulk of the territory in question as crown land—

Mr. John Bryden: It's still crown land.

Mr. Greg Gauld: —and then a percentage of this becomes land that belongs to the aboriginal group collectively.

Mr. John Bryden: And that's the point I'm trying to get at. What do we mean when we say that the land “belongs” to the aboriginals? Mr. Scott was trying to point out, I do believe, that when you hold title to a property... Where I live in Dundas, you own that property by virtue of legislation that exists at the provincial level and ultimately at the federal level. The difference is between owning property as a resident of a municipality under the province, under the federal government, versus actual sovereignty, where you own the property as another nation.

Now what I'm trying to get at is whether, in your mind—because we can bring the justice officials before us—you are clear about what instructions the justice department officials have with respect to what the federal government means by “ownership” when it negotiates these claims.

Mr. Greg Gauld: I can't comment on what instructions they have. I can comment on my understanding.

Mr. John Bryden: That's what I'm after.

Mr. Greg Gauld: My understanding is that the lands in the settlement, whether the ownership is with the aboriginal group or with the crown, are still part of Canada and they remain part of Canada. This is one of the issues that gets settled in the land claim. There are some groups we are trying to work with at the moment that are not yet into formal negotiations and have been reluctant to get into negotiations because they are asserting that they in fact have full sovereignty.

Mr. John Bryden: Okay. Thank you.

Mr. Greg Gauld: And generally, that is an issue we work out through the negotiations, with the result that I've explained.

The Vice-Chairman (Mr. John Finlay): Thank you, sir.

Mr. Keddy.

Mr. Gerald Keddy: Thank you, Mr. Chairman. I don't know where to start.

The Vice-Chairman (Mr. John Finlay): As long as you know where to finish, Mr. Keddy.

Some hon. members: Oh, oh.

An hon. member: Good one, John.

Mr. Gerald Keddy: I can't believe you said that.

Part of the whole issue I think a lot of us have some difficulty dealing with and which the courts have dealt with for a long time—and I appreciate your comment that the courts have now told government to deal with it because they're just tired of dealing with it—is the whole nation-to-nation concept. I think that many of us have a great deal of difficulty dealing with that nation-to-nation concept.

I was surprised that our member from the Bloc raised that issue because I didn't think he should have a problem dealing with the nation-to-nation concept. But it is very much a problem. I have a couple of specific questions—plus I'd like your comment on that whole nation-to-nation dealing—on native logging and costs in Nova Scotia, in particular after the Delgamuukw decision. And in regard to the amount of native logging on crown land, who's doing it? I'd like your comments on the numbers of non-native entrepreneurs who are taking advantage of that situation and on where the income goes.

I've certainly followed it very closely in southwestern Nova Scotia. There's a fair amount of native logging going on, but actually very little of it by native logging crews. Most of it is logging on crown land by non-natives with some native representation, like maybe one native person on a crew who may or may not actually be working on that crew.

There's been absolutely no attempt to log in a sustainable manner. There's been no attempt to log under the auspices of the Department of Natural Resources or under any of the guidelines that have been set out by that department, guidelines that every other logger in Nova Scotia has to follow. Again, you get into that whole jurisdictional thing and nation-to-nation. Certainly it's a big issue.

The other issue that's immediate to Nova Scotia is the illegal lobster fishery in St. Marys Bay. They're predicting that somewhere around $30 million worth of lobster has been taken out of St. Marys Bay—that's mainly Digby County, for the rest of us here—and this year, again, natives are allowed to fish for lobster.

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And quite simply, the Department of Indian Affairs and Northern Development and the Department of Fisheries refuse to enact the law. The fishery is 100% controlled by conservation. Natives are allowed to set six traps per family. They can take lobsters that are seed lobsters, lobsters with eggs on them. They can take undersized lobsters and oversized lobsters. There's a set of rules out there but those rules are not being enforced.

The Vice-Chairman (Mr. John Finlay): Mr. Keddy, with all respect, could we get to the question?

Mr. Gerald Keddy: The questions were: where is the logging income coming from?; where is it going?; and, quite simply, who is it benefiting? In my opinion—and I'll go along with Mr. Scott's reason—I'm not sure it's benefiting the natives. And I'm not sure the resource is going to be there in a sustainable manner. There's only so much crown land to cut.

Second, it's the same thing. There's a lobster fishery going on that's exceeding... I understand the Supreme Court agreement and the right to hunt and fish, and I can live within the jurisdictions of that, but if you're not going to have that supported by conservation measures or not have some type of regulations in there, then where does it end? For the benefit of not necessarily us but of our future generations, and for everyone's benefit—first nations and non-native groups who have to share this area together—in order for society to break out of that stigma and to provide economic activity, you have to deal with some of those issues now. How are you going to do that within that nation-to-nation concept when the ordinary citizen out there doesn't understand it?

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Keddy.

Mr. Gerald Keddy: Thank you, John.

Mr. Greg Gauld: My response will have to be a little general because I'm not familiar with the particular circumstances in the lobster fishery or the other one.

This is kind of basic to our business: the idea that the courts have told us aboriginal people have rights under our constitution that other Canadians don't have, but these rights are generally undefined until there is a court case, often a court case that winds its way right through to the Supreme Court, which makes a finding as to what those rights are. Those finding are usually site- and fact-specific. They can be particular to a particular group.

So the government approach, rather than going through the courts to find this out, has been to negotiate an arrangement so we'll know what rights people will exercise. For instance, if we apply that notion to the examples that you gave, a lot of our treaties will set out the actual fishing allocations by species to which the aboriginal party would be entitled—or mechanisms for doing that and mechanisms to ensure that there is a conservation of the species, that the fish or the lobster or whatever continue to be there in the future, and that there's a fair sharing of them.

Since all the parties have agreed voluntarily to this agreement and it is an agreement which is enforceable, you then have a way of dealing with the rights of the aboriginal people in the area.

Now, we're not currently negotiating a comprehensive claim in Nova Scotia or New Brunswick—

Mr. Gerald Keddy: I know that.

Mr. Greg Gauld: —but we are having some discussions with people down there to see if that might be a way to deal with some of these issues.

The Vice-Chairman (Mr. John Finlay): Do you have anything to add, Mr. Henderson?

Mr. Terry Henderson: No, I do not.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Keddy.

Judi Longfield.

Mrs. Judi Longfield (Whitby—Ajax, Lib.): Thank you.

On page 14-22 of the report, in exhibit 14.8, there are a number of statements, 11 in total, entitled, “Perspectives of Selected First Nations Involved in Comprehensive Land Claims”. Rather than read through them, I would be interested in hearing if the department has some comments with respect to these statements. I'll let you carry on from there; on each one, I would like the government response.

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Mr. Terry Henderson: Mr. Chairman, I'm not sure I have a specific response to each of these items. The comments cited here are not attributed to anyone in particular. I can well imagine that they were expressed by certain leaders within the western Northwest Territories and possibly within the Yukon respecting implementation of land claims and other matters.

It goes back to an earlier question. In fact, we have in place a fairly rigorous process of implementation. We do meet on a very regular basis with the parties to the land claim agreement and the implementation plans. We have, in most cases, implementation committees in place; we meet three to four times a year formally and go through various and sundry issues. I would emphasize the point that having the land claim agreement and the implementation plan in place does not mean that we will not have implementation issues and differences of opinion around the table. We clearly do have those differences, but we also have mechanisms in place to endeavour to address those kinds of issues.

Ma'am, do you want to focus on a particular one you would like me to speak to?

Mrs. Judi Longfield: In a perfect world, I would like you to speak to all of them, but let's start with this one:

Implementation is not proceeding efficiently and the post-settlement relationship between the parties is not harmonious.

Mr. Terry Henderson: I guess I would go back and say in regard to the parties that we have three-party committees and we are meeting on a regular basis. We are dealing with issues. The land claim agreements themselves are about an inch thick, on average, and the implementation plans accompanying those land claim agreements are of similar size. There are many obligations that endue to those particular documents and there is a considerable amount of implementation effort on all sides. We all try to work together to implement the land claim agreements.

It does not mean that we do not have issues which are dealt with on a regular basis. When questions or statements like that come up, I like to deal with the individuals who have expressed those statements and find out what the basis for those kinds of comments is, because they are fairly generalized comments, which disturb me in the context of implementing an agreement where I feel that the cup tends to be about 97% or 98% full, and there are difficulties and issues at the margins that we are dealing with. And yes, in some cases, there are disputes that we are dealing with, some that need to be resolved through other formal dispute resolution mechanisms or the courts.

Mrs. Judi Longfield: My concern, I guess, is that if they're highlighted here as an exhibit, obviously the Auditor General felt they were reflective of the concerns out there. They're not very complimentary to the whole process. You said you don't know who they're attributable to. If they are going to be included, is there a way to find out specifically who they are and try to deal with these very grave concerns? Certainly the perception is not good if these are the comments that are being placed before us.

Mr. Terry Henderson: I would certainly be happy to ask the Auditor General or colleagues in the Auditor General's office for an attribution of these comments, and then to approach those individuals and try to deal with it.

But in most of these land claim agreements, we are preparing on an annual basis an annual report. And it is not an annual report from the federal government's perspective; it is an annual report that is signed off by representatives of all three parties, the beneficiary group, the territorial government, as the case may be, and the Government of Canada representative. So we are presenting our best coverage on what has occurred over the course of that year with respect to implementation. We are not shy about identifying issues that are outstanding in the report, but we also talk about a great deal of progress that has been made.

So we have those. Those reports are tabled by the minister in both houses of Parliament on a regular basis. I would offer those up of evidence of the progress that is being made.

The Vice-Chair (Mr. John Finlay): Thank you very much. Mr. Scott.

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Mr. Mike Scott: In response to questions from Mr. Bryden, you talked about the property provisions in the Nisga'a agreement. I think we have to look at that because it sets the tone for what's going to come down the pipe.

You would agree with me that the Nisga'a agreement provides collective ownership to some 2,000 square kilometres of land in northwest British Columbia but there is no provision for private property rights, that is, it is collective ownership.

Mr. Greg Gauld: When I replied to Mr. Bryden, my comments were generally about claims, not specifically about the Nisga'a one.

On the Nisga'a one, the Nisga'a nation becomes the owner of the 2,000 kilometres. Generally in all claims, we try not to affect private property owners. In effect, it's a principle of claim.

Mr. Mike Scott: Sir, you just said to Mr. Bryden that this land was still part of Canada. You talked about the “Nisga'a nation”. You used the term yourself. The provisions in the Nisga'a agreement provide for ownership of land that is collective in nature and goes well beyond fee simple. You would agree that in fee simple ownership of land, people do not have subsurface rights in Canada. But in fact that is granted to the Nisga'a under the terms of this agreement.

Mr. Greg Gauld: There are subsurface rights for the Nisga'a on that land. I can't comment generally on what fee simple includes or doesn't include. I'm not a lawyer and I think you should have justice officials here to deal with that.

Mr. Mike Scott: You would agree as a Canadian that I, as a non-Nisga'a person, would not be able to live on that land without permission of the Nisga'a central government and you would agree that under the provisions of this agreement I would never be able to own property within the Nisga'a settlement lands.

Mr. Greg Gauld: I didn't come prepared to discuss the Nisga'a deal. We could come another time to discuss that.

Mr. Mike Scott: Okay. I'll move on. Obviously—

The Vice-Chairman (Mr. John Finlay): There's a suggestion from my colleague that if the Nisga'a own a certain amount of land and want to sell it to Mr. Scott, they would have the right to do that.

Mr. Mike Scott: No, they don't! They do not.

An hon. member: No.

Mr. Mike Scott: Let me move on. You talked about a payroll of $8 million, but the B.C. treaty process has been set up for about three years and that represents a $90 million expenditure, which represents about $30 million a year. Can you explain where the rest of that money is going? What's your annual budget?

Mr. Greg Gauld: My annual budget or...?

Mr. Mike Scott: The B.C. treaty process budget.

Mr. Greg Gauld: For the B.C. treaty process, the figures I have are about $15 million or $16 million for the FTNO operation, plus about $2.3 million in federal contributions for the BCTC, plus money provided as negotiation funding for B.C. first nations in the BCTC process for the self-government negotiations, about $3.4 million.

Mr. Mike Scott: So you would agree with me, then, sir, that what we have is an ongoing annual cost in excess of $20 million, according to your numbers that you just read, and I think—

Mr. Greg Gauld: It comes to about $20 million.

Mr. Mike Scott: I'm about right, with no end in sight, because you don't have a defined timeline that you're working to right now.

Mr. Greg Gauld: No. I can't give you a final date—

Mr. Mike Scott: So you would agree that there's no end in sight?

Mr. Greg Gauld: Well, I think at some point there will be an end. I—

Mr. Mike Scott: But you can't tell us today what that point is going to be.

Mr. Greg Gauld: I'm very short-sighted.

Mr. Mike Scott: Right.

Finally, you talked about the philosophy of resolving claims. I don't think very many people in Canada would disagree that we should get this issue behind us and have it resolved, but there's a question that a lot of people in British Columbia are asking and that I think more Canadians are going to be asking.

At the negotiation table, we're giving up assets in cash that total, in the case of the Nisga'a deal—and I keep going back to that because it is the template—about $500 million, according to the very conservative values that the province and the federal government have placed on the land. Now, I would like to know what the people of British Columbia and Canada are getting back in that exchange at the negotiation table. A negotiation is always about an exchange, an agreement, a contract. What's the exchange? What do the people of British Columbia and of Canada get?

Mr. Greg Gauld: One, there is now clear certainty about the rights of the Nisga'a and others in the Nass Valley area, both on the Nisga'a-owned lands and outside those. The rights are set out in the treaty.

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Two, there is a new relationship with the Nisga'a, one which we hope will help them reach some measure of economic self-reliance, self-sufficiency and prosperity there.

And there's now no dispute as to whether the Nisga'a have aboriginal rights over the vast majority of the territory which they originally claimed. I think the lands which form part of the settlement comprise roughly about 10% of the traditional territory they originally claimed.

Mr. Mike Scott: Basically, your big answer to the question I just posed is “certainty”, but I've already described to you how there are people in the resource industry in British Columbia who say they won't be making any more investments in the province, based on Nisga'a.

I would also like to ask you this question because I think this is vitally important. It speaks to what Mr. Bryden was asking you about and what Mr. Wilfert was asking you about when he was questioning you. When it comes to certainty, how can the department ask us to believe that certainty is being obtained when in fact, as I understand it—and I'm going to ask you to confirm this—there are existing treaties in other parts of Canada that are currently being proposed for reopening, for renegotiation?

Mr. Greg Gauld: Okay, on your—

Mr. Mike Scott: It's come to my attention that in regard to Treaty No. 8, for example, the minister has made some statements recently, publicly, that it is open for negotiation or may be open for negotiation—or at least parts of it. Is there truth to that?

Mr. Greg Gauld: If I could take your first question, your statement that there are companies saying they will make no more investments because of Nisga'a, this is news to me. I haven't heard this or seen those statements. I do know that there are a lot of of people who seem to be concerned about the uncertainty in the absence of treaties. In fact, as I mentioned before, even that conference yesterday seemed to be encouraging the government to proceed with treaties to clear up that uncertainty in order to improve the investment climate in British Columbia.

With respect to the certainty issue and the reopening of treaties, specifically on the Treaty No. 8 area, in the Northwest Territories we have part of Treaty No. 8 and Treaty No. 11. There was a commitment by the federal government several years ago to look at negotiating a new, more comprehensive settlement in that area, for several reasons, in part because these treaties, which date back to 1921 in one case and earlier than that in the other case, are in many areas very vague and there are certain obligations in there—for instance, the creation of reserves—which haven't been dealt with.

To clean up the situation there and to establish a new relationship, there was a commitment to negotiate up there. There was a deal, the Dene-Métis deal, which was ratified in 1990 and fell through at the last moment. Since then, we've proceeded to negotiate on a regional basis. In fact, some of the agreements that are the subject of the Auditor General's sample are agreements which resulted from that decision. We're still working with the people in Treaty No. 8, south of the Great Slave Lake.

Mr. Mike Scott: So in fact, what you've just confirmed is that the department recognizes—and I think it would only be reasonable to come to that conclusion—that treaties in other parts of Canada don't begin to resemble what the department is crafting in British Columbia or what the department is negotiating in British Columbia, and that once Nisga'a and similar treaties in British Columbia are visible for everybody to see, it would only be natural—and the department is already, apparently, anticipating it—that this will eventually result in renegotiation of many, if not all, old treaties in Canada.

Mr. Greg Gauld: I can't agree with your statement.

Mr. Mike Scott: That's the direction you're going in, sir.

Mr. Greg Gauld: What we have are two periods of treaty-making in Canada. There was an historic treaty-making period that started in pre-Confederation times and extended through to the beginning of this century. Then there was a great period of time when there were no treaty negotiations and when, in fact, the government forbade aboriginal groups to engage lawyers to discuss land claims or even to meet in groups to discuss land claims.

The first modern land claim didn't appear until the James Bay agreement in 1975. The modern settlements are quite different. The modern treaties are quite different from these historic treaties and deal much more comprehensively and clearly with rights and setting them out so there is certainty into the future.

Mr. Mike Scott: So the old treaties—

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Gauld. You've been very clear on that and very helpful.

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Nancy, do you have a question? Mr. Bryden has a little one he wants to ask.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): In some cases it's difficult for me to make a lot of comments because I'm a beneficiary of a land claims agreement and so...

The Vice-Chairman (Mr. John Finlay): You were directly involved.

Mrs. Nancy Karetak-Lindell: Yes.

The Vice-Chairman (Mr. John Finlay): You make what comments you wish.

Mrs. Nancy Karetak-Lindell: I do have one question. Because of different interpretations of the land claims agreement, we do end up having to go to court. The government may interpret one thing one way and the land claims beneficiaries another.

I'm currently dealing with Fisheries and Oceans with the Nunavut Wildlife Management Advisory Board. How do we settle claims so that we know exactly what we're understanding at the time, so that we do not have to go to litigation? In a case with the Nunavut Wildlife Management Advisory Board, they went to court before last July. The government was found to be acting not in accordance with the land claims agreement. How do we avoid those situations?

The Vice-Chairman (Mr. John Finlay): Stop being human and be godlike.

An hon. member: That's right.

Mr. Terry Henderson: I'm not sure how we can avoid those kinds of situations. As I tried to say in response to an earlier question, we haven't created perfection here. We do have very complex agreements that we have reached with various parties. Issues and disputes that normally arise are probably more administrative issues and questions about timing and delays and so on because of the numbers of factors that have arisen in implementing certain provisions. But clearly there are other cases where it's just differing interpretations.

As much as we have tried to provide clear language in the final agreements themselves and to better describe the nature of the activity surrounding that language in the implementation plans, there are still ultimately those issues that are going to wind up in dispute between the parties.

Mr. Greg Gauld: I should point out that there's really no comparison in the amount of litigation related to historic treaties and the amount of litigation related to modern treaties. There's just no comparison. The historic treaties are just riddled with litigation issues.

Mr. Terry Henderson: If I might just pursue that a bit further, you did refer to a certain case—it's still before the courts so I can't really talk about it in at any length—and I would say that was a case where the existing issues-resolution processes were not attempted first. It was the choice, and it was clearly a choice of the party, Nunavut Tunngavik, to use the instrument of the courts first-hand as opposed to referring the issue to the Nunavut Implementation Panel, which is the three-party implementation forum set up to review status and implementation. It never did appear, but that was an instrument that could have been tried first. It was not tried in this case. And it is always the prerogative of the party to decide how it wants to act in those particular cases.

The Vice-Chairman (Mr. John Finlay): Very enlightening too, Mr. Henderson. Thank you.

Mr. Bryden.

Mr. John Bryden: Very quickly, does the Department of Justice do the drafting of the treaties as well as the...?

Mr. Greg Gauld: Yes. The final drafting is usually done by a team

[Inaudible—Editor].

Mr. John Bryden:

[Inaudible—Editor]

Mr. Chairman, I'll make an observation as a backbench MP, that is, from time to time I have encountered very bad drafting coming out of the Department of Justice, which, as you know, controls all government legislation. The quality is very uneven.

So perhaps I can recommend, through you, Mr. Chairman, to the witnesses, that they carry back a message. Perhaps the department ought to undertake an evaluation of the quality of treaty-drafting that has been coming out of the Department of Justice over the past few years—as a matter of fact, for the past 10 years. I think that maybe some of my colleague Nancy's concerns might be rooted in the quality of the actual writing of the treaties.

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Finally, Mr. Chairman, in just a quick comment, I'm very interested in the issue of sovereignty and I accept the witnesses' reply to my question earlier that they're confident we're talking about not giving away portions of the country. Nevertheless, I think Mr. Scott's concerns that he raises are real and genuine concerns, which Canadians share when they hear about aboriginal self-government.

So I would suggest, Mr. Chairman, that perhaps the steering committee consider bringing before this committee the appropriate officials of the Department of Justice, and let's get on the record exactly what we're talking about when we talk about “ownership”.

The Vice-Chairman (Mr. John Finlay): Thank you, Mr. Bryden.

We're coming to the end of our time. I have—I hope with your permission—one or two quick questions.

I would like to say, gentlemen, that I find paragraph 5 in your report, Mr. Gauld, to be an excellent statement that I hope we might all take to heart—or at least understand.

Then at the next bullet, paragraph 6 regarding the James Bay claims and so on, you say “yet more improvements are required”. We have heard from the commissioners of the Cree-Naskapi Commission, who indicated to us that they've been making biannual reports, some six of them, and sending them to the ministry. That's where they go and they hear nary a word.

I'm not sure whether that's totally accurate, but that is certainly their perception, and my question is, what is the point of this commission if we're not going to pay some attention to it?

Mr. Terry Henderson: Mr. Chairman, the Cree-Naskapi Commission was created as an instrument under the Cree-Naskapi (of Quebec) Act in 1984 to do two things. Its mandate is to prepare a biannual report with respect to the implementation of the act, and the Cree-Naskapi Act is not the land claim agreement itself, but is the legislation putting in place the local government, the powers that Mr. Gauld referred to earlier. Secondly, its mandate is to hear representations from community members, from communities and so on with respect to the implementation of the act.

The department does receive these reports every two years. Those reports are tabled in both Houses of Parliament and have been on a regular basis. The minister received the latest report on October 5. That report has now been tabled in both Houses of Parliament. We are now proceeding to review it and had an internal meeting within the department just late yesterday afternoon to discuss how to proceed with that report.

We have a process in place right now between the James Bay Cree and the Government of Canada. M^e Michel Vennat is our chief federal negotiator. On the Cree side, it's Dr. Ted Moses. They have a process in play to work out looking at outstanding obligations under the James Bay and Northern Quebec Agreement and looking at questions of a new relationship between the Government of Canada and the James Bay Cree.

It's our hope that in the context of those discussions—there are tables that are being set up to look at various sectoral issues—we will be able to proceed with a review of the governance and self-government regimes that exist for the Cree and for the Naskapi, which would lead to some consideration of the Cree-Naskapi Act and the Cree-Naskapi Commission itself.

We are also intending to take the 41 recommendations that have been made in that particular report and do follow-up action. We believe now that 14 of those are either fully completed or underway at this stage of the game with respect to actions that the department has taken and is taking. There are a few that we have considerable difficulty with, just because of the nature of the recommendations, and there are probably another 24 that the department will undertake further follow-up action on in discussions with the Cree-Naskapi Commission through the Vennat-Moses process and discussions with the Cree and the Naskapi.

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The Vice-Chairman (Mr. John Finlay): It might be valuable for this committee to keep a watching brief over that. When you've finished those reviews, we might call you back again to see what has been done with those recommendations.

I have one last very quick question. Mr. Gauld said, in reference to the James Bay and Northern Quebec Agreement:

We are preparing an action plan which will allow for consultation with our key partners to address the report's recommendations. Speaking on behalf of the Assembly of First Nations, Bill Erasmus has proposed that we sit down with them and work jointly to address the issues that the Auditor General has raised.

Have we done that? Have you done that? Or are we planning to do that?

Mr. Greg Gauld: The action plan I referred to is the action plan responding to the recommendations and observations of the Auditor General more generally, not just James Bay. We are consulting internally at the moment and we will be working up an action plan. Part of that action plan will involve consulting with our partners, because there's a commitment on the part of the department to work as closely as possible with our partners in things that affect them.

The Vice-Chairman (Mr. John Finlay): I thank you, Mr. Gauld, and I thank you, Mr. Henderson. You've been most helpful.

The meeting is adjourned.