Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 11 - Evidence
OTTAWA, November 3, 1998
The Standing Senate Committee on Aboriginal Peoples met this day at 9:10 a.m. to examine and report upon Aboriginal self-government.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: We have witnesses today from the Cree-Naskapi Commission. Before we proceed, I wish to that this commission's report is not the first report which has been submitted to the Government of Canada on the basis of the lack of seriousness or commitment of the government related to the James Bay and Northern Quebec and Northeastern Quebec Agreements?
Mr. Richard C. Saunders, Interim Chairman, Cree-Naskapi Commission: That is correct.
The Chairman: This report also covers the Naskapi to the full extent from the beginning to now?
Mr. Saunders: That is correct.
The Chairman: To your knowledge, have you ever in the past submitted a report jointly or partially with the Makivik Corporation, since it is also included in the James Bay and Northern Quebec Agreement?
Mr. Saunders: No, we have not. We have acted in accordance with the Cree-Naskapi (of Quebec) Act.
The Chairman: Is this act specifically dealing with the question of self-government which was enacted after the James Bay and Northern Quebec Agreement?
Mr. Saunders: It deals with self-government primarily and with the land regime, Categories 1A and 1A-N.
The Chairman: Thank you. Please proceed.
Mr. Saunders: Thank you for this opportunity to discuss important issues flowing out of this land claims settlement. Generally speaking, senators are more aware -- and I say this with great respect to the House of Commons -- of some of these issues, so I will be more brief on the background than I was when we made our presentation to the Commons committee.
The James Bay and Northern Quebec Agreement was signed on November 11, 1975. The Northeastern Quebec Agreement, which resolved some of the outstanding issues of the Naskapi, was signed January 31, 1978. Those two agreements both contained undertakings of the government to pass self-government legislation giving effect to a number of the provisions of the two agreements.
The Cree-Naskapi (of Quebec) Act came into force in 1984 and the first commissioners, which included Commissioner Kanatewat and myself, were appointed in February of 1986. Since that time, we have prepared six reports, one every two years.
The report we are discussing today is the sixth report. The procedure under the act is that the reports are submitted to the minister who then has 10 days to table them in the House of Commons and in the Senate. No further provision is made for follow-up.
Regrettably, we have been hearing complaints from our communities that after our recommendations are made, nothing else is done. We have been asked to take a more assertive role in making sure that our recommendations are known to the decision-makers and to those who influence strongly decision making and policy making at the federal level. The communities expect some action, not just talk. They are tired of recommendations that simply fill up bookshelves here and there.
We are pleased to be here and to have been heard in the Commons committee. We hope that by putting some of the issues before you, some action will be taken. You can make judgments on some of the things we say and pass that information along, hopefully, to the minister and to other officials who make decisions.
This report, overall, deals with successes as well as concerns and, frankly, with failures in relation to the implementation of self-government in the Cree and Naskapi communities of northern Quebec as contemplated in the Cree-Naskapi (of Quebec) Act and, more importantly, in the signed agreements.
We will also discuss the generic or systemic problems that we have identified. We know you have listened to aboriginal people so you will realize one of the principal concerns in Canada is the perception that treaties are made and then broken almost immediately. You can talk to the Blackfoot about Treaty 7 or to the Cree about Treaty 6 or Treaty 8. You can talk to the Dakota Ojibwa about Treaty 1 and Treaty 2. They all have the same central concern.
When you talk to the Cree and Naskapi of northern Quebec, you will hear the same central concern: Agreements have been made and they have not been carried out in full. Certain provisions have been just plain broken. There is grave concern about this.
We have asked ourselves why this happens. Are the ministers and their senior officials bad guys? Certainly not. What is the problem here? My two colleagues and I have considerable experience with this concern and we have identified four underlying problems -- the public mandate issue, the collective awareness issue, the corporate memory problem and ministerial impotence.
Minister Stewart, I think, had a little fun with that last one but it focuses on an important point.
Regarding the public mandate issue, if you are an elected official of the government of this country, you believe that you have been elected to make decisions including decisions that are not particularly popular. That is true. You generally feel that a democratically elected government has the right to make decisions about policy matters and expenditure choices. You can reduce the size of the armed forces or lower UI premiums.
You can do many things and you generally feel they fall within that legitimate political process. If people do not like your choices, they can present their views. They can write letters to you. They can send petitions and, if they want, they can vote against you in the next election.
The overwhelming majority of decisions taken by government fall into that process and that is as it should be. This is a democracy and governments are elected to govern. However, if one looks at treaties and agreements such as the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, those agreements do not create policy options. The Supreme Court has said clearly in Badger that they create enforceable obligations.
Once you have made a contract, you cannot sit back and decide then whether to carry out that contract based on matters of policy choice. Governmental structures and departments are set up to make policy choices and expenditure-prioritization decisions and decisions based on various issues in the Canadian economy and political moods and so on.
Departments are set up to operate in that way, including the Department of Indian Affairs and Northern Development. Certainly, there are some aspects of indian affairs policy which involve policy-making choices, expenditure prioritization, et cetera That is fine, but we argue that this way of thinking does not work when you are dealing with a lawful obligation.
Our second area of concern is collective awareness. When senior officials appeared before our commission, we asked them about the effect on their work of the Supreme Court decision entrenching treaty and aboriginal rights in section 35. The courts have made many decisions that impact on government's dealing with treaties and agreements. We asked how this decision affected the James Bay agreement and the answer was: Well, next question.
There is a problem with collective awareness. We have noticed that if the Supreme Court brings down a decision about how a treaty is to be interpreted, the next day, officials continue to interpret the section in the same old way, continuing to follow their policy priorities. Either they are not aware of what is happening or, if they are aware, they think it does not apply. Therefore, we must go to court endlessly, wasting huge amounts of money and goodwill to resolve every clause in every treaty and agreement.
In Badger, the court showed its annoyance and said it would state yet again the rules for interpretation. One would think that the Department of Justice would spend a bit of time advising Indian Affairs officials of their fiduciary duties and the rules of interpretation and so on, rather than allowing them to be dragged into litigation over and over again.
The third problem we will talk about briefly is the corporate memory issue. It is somewhat similar to collective awareness. Ministers come; ministers go. Deputies come; deputies go. Many senior officials are selected because of their process skills. They are perceived to be good managers. They are perceived to understand financial management or personnel policy, things of that sort. They are not selected for their substantive knowledge of the matters that they will be overseeing, and we think they should be chosen on that basis. We think that the people who run the Department of Indian Affairs and Northern Development should be knowledgeable about treaties, aboriginal rights and, generally, about Indian Affairs, before they become senior officials.
The final part of the problem is what we call ministerial impotence. We ascribe some very positive motives to the present minister. In her "Gathering Strength" document, she has indicated that the government has made some serious mistakes in the past in relating to aboriginal people and that it is time stop making those mistakes and to move on to develop a new partnership.
We think that is an excellent intention. We do not think, however, that her department officials understand what that means or do they necessarily accept it at a practical level.
For example, the James Bay agreement contains a land claim regime which settles the status of land. It sets out the lands which are to be Category IA and Category IA-N and Category II. Lands that are generally called "reserve lands" in other parts of Canada are here classed as Categories 1A and 1A-N. One would think that since the agreement was passed more than 24 years ago, the land would have been transferred by now. It has not been. The minister has great intentions but her officials are not following through.
We could go on and on with examples of good intentions which have not been carried out.
In 1986, the government had negotiated a funding arrangement, a statement of understanding. The then minister had signed it. I recall looking at videotapes of the ceremony. Billy Diamond, then Grand Chief, said: I know your officials do not like your agreement; are you sure you know what you are signing?
The minister replied: Give me the paper and I will sign it.
Within two years, an assistant deputy minister came before us named Richard Van Loon, a fine gentleman who has since become the president of Carleton University. He told our commission then that the government is not bound by the agreement and that the minister had no authority to sign it. That kind of nonsense should not be going on.
I have been around a long time and I have had occasion to speak to a number of officials about these problems. Two previous ministers have told me they did not have much say in running their department. There is nothing exceptional about that. That is reality.
When government finally gets its act together and comes out with a policy that makes sense -- usually after lengthy discussions and negotiations with First Nations and Inuit leaders -- it is important that someone carry it out, rather than simply waiting for the minister to leave office or to move to another portfolio. That is the problem of ministerial impotence.
We have a number of tentative suggestions designed to get some discussion going on the solutions, rather than always focusing on the problems. We need an implementation secretariat. There is a James Bay implementation secretariat but it is at the bottom of the ladder. It does not control any dollars. It does not control any programs. A junior official heads the implementation secretariat. He has no budget, very few staff and no program or policy authority. That secretariat does not work. What a surprise.
That implementation secretariat is a part of the Department of Indian Affairs and Northern Development which is part of the policy-making, expenditure-prioritizing system of government. The secretariat does not belong there. Their job is to implement lawful obligations.
A small secretariat should be created, taken from the existing person-years of Indian Affairs and set up away from the departmental structure. Its task would be, after agreements have been negotiated and treaties have been signed, to implement them. It should be completely separate from the policy-making, expenditure-prioritizing and decision-making body. It should be an implementing body.
There should be legislation to address the problems of implementation, particularly the financial aspects. The original agreement has more than a quarter-million words in it. Many more have since been added. This is not a simple document. It is a complicated, detailed document that answers most of the questions relating to implementation. It tells everyone what ought to be done.
The trouble is that the bureaucracy is not used to carrying out agreements such as these, even though they are constitutionally entrenched. They are used to following legislation or government policy. They are used to following the Financial Administration Act. They will even defy their superiors occasionally if they think they are being asked to do anything that is out of line with the Financial Administration Act; and so they should.
One option might be to create some treaty implementation legislation. More discipline might also be imposed upon government negotiators in their initial negotiating efforts if they realize that the government must actually carry out the agreement. They should know it not acceptable to simply sign something, insist that the aboriginal peoples carry out their side, and yet ignore their own obligations and get away with it. Perhaps the government would demand far less in terms of surrendered rights if they know they must pay for those rights. Perhaps the government would be prepared to acknowledge more inherent power and to leave that power where it belongs, in the hands of aboriginal communities, if they know they must pay to take it away.
We also talk about the need for a temporary court. If one looks at what has happened in such cases as Badger and Sioui and Sparrow and the other two dozen major aboriginal and treaty rights cases, one finds that generally the initial court decision went against the aboriginal party. Then there were appeals and counter-appeals. The decisions went back and forth all the way to the Supreme Court.
Very often even the appeal courts got it wrong. That is unusual in Canadian jurisprudence. Generally speaking, appeal courts, if they are unanimous, are found to be right and their decisions are upheld by the Supreme Court. In aboriginal issues, though, that trends is not usually there. That is because a new body of law is being developed.
The constitutional provisions in section 35 are quite new. Most of the people sitting on the lower court benches did not take aboriginal law at law school. There was no such course; how could they? There have obviously not been many decisions on law which became constitutionally entrenched in 1982.
Many of the Supreme Court decisions are new. Many of the judges in the lower courts have no background in aboriginal law. They look at it as common law, contract law, or some sort of airy-fairy, theoretical thing. They do not have much press to go on. This is a problem for them.
Going through the courts costs enormous amounts of money. It takes a very long time. A lot of goodwill is wasted when aboriginal peoples are battling governments in court. They are in fact battling their fiduciary. It is a strange thing to be fighting with one's fiduciary or trustee all the time.
We suggest that Parliament use its authority under section 101 of the Constitution to create a new court on a temporary basis, a court of national jurisdiction that would deal with aboriginal and treaty rights issues.
We suggest putting it perhaps at the trial division of the Federal Court level. It would be close enough to the top of the pyramid and specialized enough that it can pay attention to what has gone on in the Supreme Court. It can focus its attention on these issues. Hopefully it would contain aboriginal justices, among others. It would establish clearly a body of precedence which would be upheld or not by the Supreme Court.
After 10, 15, possibly even 20 years, it should be dissolved because by then you have a sufficient body of precedence. The lower courts will be familiar with it. It will exist in all the law journals, in law reports, and will be taught in law school. People will know about it. You will not have to go back and invent the wheel every time someone gets arrested for fishing or hunting or whatever. There would be a body of precedence which the regular court system could apply.
We also looked at many individual and specific issues. Some issues relate to policing and jurisdiction. Some issues relate to the offshore islands in James Bay and Hudson Bay. There are many local issues at the community level.
We also looked at some of the positive things that were happening. This is not a "fed bashing" report. Hopefully it is a report which also looks at some of positive things. We have identified quite a number of those.
The commission did have and we continue to have some financial problems. An independent inquiry, the Cowie commission, was appointed in 1990 to look into our activities. It was prescribed under the act that, after five years, our activities would be reviewed.
Back in 1991, the Cowie commission reported that we were grossly underfunded so much so that we could not do our work properly. We have not had any increases since and it continues to be a problem.
Commissioner Cowie and his colleagues also suggested that the reason we were underfunded was that the Department of Indian Affairs and Northern Development wanted to contain us. Since the legislation gave us independence, the best way for the department to contain us and control us was through limited funding. That was the view of the Cowie commission.
We talked a bit about funding ourselves in the report. That is something we would do reluctantly. We do not think statutory commissions should be going around lobbying for money for themselves. That does not seem to me to be an appropriate activity. At the same time, if you have a legislative responsibility, you ought to carry it out. If you are having trouble, you ought to deal with it.
In this current fiscal year, I would like to go on record as saying that the minister was asked to provide the Cree-Naskapi Commission with an additional $150,000 to allow us to complete the proper follow-up to the report. I understand from her office that the money is forthcoming. Any criticism about lack of response in the current fiscal year has to be reviewed in view of the fact the minister will provide, as we understand it, the funds requested by us on October 15. The funding problem for the next five years, however, has not yet been resolved and remains outstanding.
There was an elder, an old lady, on the Blood reserve about 20 years ago when I was young and thought I knew everything. She told me this: Young fellow, the Creator gave you two ears and only one mouth and there is a reason for that.
Mr. Philip Awashish, Commissioner, Cree-Naskapi Commission:
Witness speaks in native tongue.
Thank you, honourable senators, for the opportunity to address this committee. I wish you all good health in carrying out your responsibilities as legislators for this country.
I want to deal with the background of our report. It is important that you understand why there is, first of all, the Cree Naskapi (of Quebec) Act; why there is a James Bay and Northern Quebec Agreement and a Northeastern Quebec Agreement.
Before 1975, the Cree and Naskapi First Nations were subject to the Indian Act which applied across the country to so-called status Indians. There were 6,000 Cree at the time. The Inuit -- and I believe Senator Watt remembers those days -- joined the Cree in pursuing a settlement of their claims, rights, interests and concerns.
The Indian Act, as far as the Cree First Nation was concerned, did not provide self-government in accordance with the self-government as practised and exercised by the Cree before the days of the Indian Act. Our right to self-government is an inherent right which, of course, predates Canada including Quebec.
The Indian Act, we believe, having experienced its impacts and effects, gave too much authority to the Minister of Indian Affairs. He virtually could overrule the band councils. Officials in Ottawa made all the decisions respecting self-government and directed all of our affairs in the local communities.
The Cree decided to put an end to that, as did the Inuit and the Naskapi in their own ways.
That is why we called upon the Government of Canada to pass new legislation which would replace the Indian Act. Section 9 of the James Bay and Northern Quebec Agreement and section 7 of the Northeastern Quebec Agreement call upon the Government of Canada to pass new legislation.
As Mr. Saunders mentioned, the Northeastern Quebec Agreement was signed in 1978. However, the James Bay and Northern Quebec Agreement was signed in November of 1975.
This Cree-Naskapi (of Quebec) Act, which was eventually enacted by the Parliament of Canada, received Royal Assent on June 14, 1984. That is almost nine years after the signing of the James Bay and Northern Quebec Agreement. It took a long time to negotiate the terms and provisions of the act. The Government of Canada was in no rush to provide some legislative recognition for the right and exercise of self-government for the Cree and Naskapi communities.
This legislation principally provides for Cree-Naskapi local government and for land administration of Categories IA and IA-N land. The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement provide for particular land regimes that apply in the territories covered by these agreements.
Northern Quebec is virtually divided into three categories. Category I is set aside for the exclusive use and benefit of the native parties who are beneficiaries of these agreements. Category II lands are for the exclusive use of the native beneficiaries as far as hunting, fishing and trapping and other rights are concerned. Category III lands are what were formerly called public lands but they are also lands in which the native parties have certain exclusive rights and other rights and interests as provided under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.
When I say that we exercised self-government long before the creation of Canada, we did so in accordance with our own history, sovereignty, laws and customs. To this day, we still exercise the right of self-government in accordance with our own ways and as recognized and set forth in the Cree-Naskapi act.
The Cree-Naskapi (of Quebec) Act provides for the Cree-Naskapi Commission. The commission primarily deals with the implementation of the act. It reports to the minister in four languages -- Cree, Naskapi, English and French.
As our chairman mentioned, this is our sixth report. Throughout our consultation process that deals with nine Cree communities and one Naskapi community, people have expressed their concerns to the commission.
The principal issue which has come out of our consultation process and which resulted in our 1998 report is the implementation or non-implementation of these modern-day treaties, being the Northeastern Quebec Agreement and the James Bay and Northern Quebec Agreement.
There is clearly a need for the beneficiaries of these agreements to have a meaningful and direct role in the proper implementation, in letter and in spirit, of these agreements. Presently a gap exists between negotiations and litigation. The native parties have complained to us often that they speak to the governments about their obligations and issues remain unresolved. Often, they must go to court which, as our chairman mentioned, is a long, difficult and expensive process.
At the moment, there is no formal mechanism for resolving disputes. Therefore, people come to us because we seem to be the only forum that goes to the communities to hear whatever is on their minds. They speak to us about the problems of local government, but they also want to talk about the agreements and the fact that these agreements are beginning to fall in line with that long trail of broken treaties.
As you may know, in the Auditor General of Canada's report to the House of Commons, chapter 14 deals with Indian Affairs and Northern Development and comprehensive land claims. The report seeks to stress the deficiencies of inadequate or non-existent implementation plans and the need to improve monitoring, reporting and evaluating.
We agree as a commission on the findings of the Auditor General. The Auditor General's report confirms our own findings on the problem of non-implementation of these agreements.
Another document has come out from the government called "Gathering Strength--Canada's Aboriginal Action Plan." It is an action plan proposed by the Government of Canada to renew the relationship with the aboriginal peoples of Canada. It talks about renewing the partnership.
When we signed the James Bay and Northern Quebec Agreement we were told there was a new partnership. "Gathering Strength" talks about strengthening aboriginal governments. It talks about developing a new fiscal relationship and supporting strong communities, peoples and economies.
Our report, in some way, deals with those particular issues. We deal with renewing relationships between the Cree-Naskapi peoples and the Government of Canada, with strengthening our governments and developing new fiscal relationships. We also deal with supporting strong communities, peoples and economies.
We stress our belief that the normal and primary means of implementation are the expressed and implied obligations placed upon the Government of Canada in the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement to take appropriate legislative and administrative action.
What kind of appropriate legislative action is necessary? We deal with that question. The answers are proposed in our 1998 report.
It has been 14 years since the Cree-Naskapi Act received assent. This is our sixth report. After five reports of this commission, the Government of Canada has so far chosen to ignore our recommendations. Our inquiry was conducted as provided in the act. The commission chaired by Ian Cowie also recommended action by the government to amend the Cree-Naskapi Act.
We have in all six reports recommended appropriate amendments to the Cree-Naskapi Act. The Naskapi and Cree First Nations up north can no longer accept the status quo. They can no longer accept that the government, in its attempt to fulfil its obligations, created the Cree-Naskapi Commission, which is technically an advisory body, but then simply ignored the advice of this commission for the past 14 years.
Why has it taken the Government of Canada nine years to negotiate or enact the Cree Naskapi act following the signature of the James Bay and Northern Quebec Agreement? Why has the Government of Canada failed or refused to take appropriate action to make sure that the Cree-Naskapi Act evolves with the needs and aspirations and realities of Cree and Naskapi local governments?
The Cree and Naskapi First Nations can see that the commission is attempting to do its duties as required under the act by reporting to Parliament. They also see those reports subsequently being ignored. Of course the Cree-Naskapi peoples will begin to question the role and mandate of the commission. They would rather see a commission which has binding authority. They would rather see a commission with perhaps an ombudsman role. They would rather see a commission having a role in assuring the proper implementation, in letter and in spirit, of these modern-day treaties, the Northeastern Quebec Agreement and the James Bay and Northern Quebec Agreement.
As commissioners, we wonder why our recommendations are ignored. We hope that this will not happen in this sixth report. The Government of Canada spent approximately $21 million in reviewing the amendments to the Indian Act. We gather there were no subsequent amendments.
We call upon your committee to assist us in the process of ensuring that appropriate measures and follow-up actions are taken by the Government of Canada. We want the government to act in an appropriate way upon our recommendations as outlined in our 1998 report and hopefully on those found in past reports, too.
The Chairman: Thank you, Mr. Awashish.
Mr. Robert Kanatewat, Commissioner, Cree-Naskapi Commission:
Witness speaks in native language.
Thank you, honourable senators. I wish you all a good day and good health.
We are honoured to appear before this committee for the first time although, as my colleague mentioned, we have already written six reports. This last one has not really gathered dust yet but, if nothing is done, it will gather dust as did all the others.
We are seriously hoping to do our utmost to follow up our recommendations and findings in the local communities. This is our sixth, more or less repetitious report. We have mentioned previously, and also in this last report, that many of the recommendations have not been followed up. This is one reason why, in the coming year, we will follow up on some of our recommendations.
We have heard the views of our people, of the Grand Council and of the minister of Indian Affairs.
We have been told that we should be more visible in the communities to hear the people's concerns.
My colleagues mentioned the lack of funding from the department. We would like to be more visible in the communities, however, our strapped financial situation limits our ability to travel and even to hear some of the representations from the local communities.
We do not have the tools to follow up our recommendations and our findings in the community so see if they were justified. We cannot do any research or obtain legal advice because of lack of funding.
We all know that there is a new territory about to be proclaimed in the North called Nunavut. Many of the islands in James Bay and Hudson Bay concern the Cree people. They use these islands year round for hunting, fishing, gathering, lodging and shelter. One of those islands in James Bay has a trap line.
When we met with the House of Commons committee, the members from Quebec were interested because they view those islands as part of Quebec. The Cree are not concerned about them being part of Quebec. We are concerned about them being part of our traditional Cree right to hunt and fish.
More specifically, members of the committee in the other place were looking to gain support from the Cree on the issue relating to the Belcher Islands, over which the Cree have no concern whatsoever. They are not interested in becoming owners of the Belcher Islands which surely and solely belong to the Inuit. We are mainly interested in the James Bay territory. Those islands have been occupied and used by the Cree people for generations.
Our report states that many Cree coastal communities have expressed a strong desire to have such claims resolved through negotiations with the Government of Canada. They want settlement of their rights and interests in a satisfactory and acceptable manner.
We also said that the coastal communities are concerned about the implication of the creation of Nunavut in 1999 since it has been proposed that the offshore islands, the intervening water and the seabed in question all be considered part of the Nunavut territory. The Cree would like to continue to hunt, fish, shelter and gather in the usual way in the future.
In regard to our grievances which we have outlined previously, the present minister has said that we should be part of the community to a greater extent and we should be more visible in the communities. This would be possible with additional funding.
The Cree-Naskapi (of Quebec) Act only has two specific mandates and that is to report every two years and to hear representations from individuals or government.
Every time we go to the communities, there is specific mention about the James Bay and Northern Quebec Agreement not being respected. We would like to implement more of these recommendations so that we will stop repeating ourselves in our reports.
There is a frustrating atmosphere about the sixth report being a repetition of previous reports. Frustrated as we are, we look forward to the possibility of following up some of those recommendations in the future.
Many Cree have already asked us if we can do anything to implement some of the recommendations which are in our reports. We are looking at ways that we can proceed in establishing some of those recommendations. With the help of this committee and the committee of the other place, we hope to be able to accomplish much more than we have in the past.
If you have any questions, we would be glad to answer them for you.
The Chairman: Thank you, Mr. Kanatewat.
Do you wish to table a copy of your sixth report with the committee?
Mr. Saunders: Yes, we will do that.
The Chairman: Thank you for your presentation. I certainly share the concerns you have raised. I was heavily involved in negotiations conducted by both Inuit and Cree in the past. As a senator, I fully understand the concerns you have brought forward and I intend to do my utmost to ensure that my colleagues also fully understand them. This is a very serious matter. When people are asked to surrender their rights and titles, they expect that there will be a fair exchange.
Aboriginal people have a tendency to trust our neighbours, perhaps more than we should. The people who have entered into agreements over the last 24 years are very frustrated today. The people who are in charge of the implementation of these agreements were very much involved in the negotiation of them. They know first-hand of the commitments that were made when we signed on the dotted line. Many of us who are still alive today remember every day of the work that we conducted leading up to and following 1975.
Those negotiations were so intense that some of us took turns sleeping under the table. There was a limited number of negotiators on the aboriginal side, while there were unlimited numbers on the other side of the table. They took turns, but we could not afford to do that. Philip Awashish and Robert Kanatewat were very much involved in those days.
Senator St. Germain: Thank you, gentlemen, for appearing before us this morning and putting your case forward in such a straightforward manner.
We have listened to what you said here this morning. So that you understand where I am coming from, I have been a minister in government. The situation we are discussing today has continued through two governments since the agreement was signed and up until today.
Mr. Saunders spoke of corporate memory. He said that ministers come and go and officials run the show. If we do not make these people more accountable for providing continuity in the process, it will continue to be a swinging gate, nothing will ever get done, and DIAND will continue to perpetuate itself.
I am a recent arrival on this committee, but I can say that if there is continuity anywhere in the parliamentary system, it is in the Senate. Hopefully, we can shed our partisan positions and find a way to deal with this problem because it must be solved. There must be the will to fulfil these agreements, these deals. Regardless of what you call them, a deal is a deal. As you pointed out, it is not like governing where decisions are made based on opinions. These decisions have to be based on the agreement that was signed.
Can you suggest a methodology that would provide consistency in the process of dealing with this?
The government brought forward legislation dealing with the Mackenzie Valley. It just so happened that it was brought in by a Liberal government. Every native group that appeared before us said that we should not implement this legislation. Yet the bureaucrats told us that the aboriginals are wrong, that they should not be opposing it.
I can well understand the frustration that you are facing as a commission. When some powerful bureaucrats in the system run into a roadblock, they force natives into expensive litigation and we must deal with that.
Mr. Saunders: Senator, the recommendations that we include in chapter 2 of our report address that to a certain extent. I believe that the implementation of treaties must be taken out of the regular bureaucracy, out of the structure of selecting policy options, making expenditure choices and so on.
That is a discretionary management model which is appropriate for most of government activity. That is why we elect governments. However, it is not appropriate for carrying out what the Supreme Court calls "lawful obligations." We should have a body outside of the department, although certainly accountable to Parliament, which has the authority to implement the agreements and that should be their only job. They should not have to worry about the housing budget for this fiscal year or anything like that. Their job would be to implement the agreements and treaties that have been signed.
That involves some of the other things we have discussed. The bureaucracy in that unit should be fully aware of their fiduciary obligations as defined by the courts and of the rules of interpretation. Some of the older treaties are less clear than the James Bay Agreement. Bureaucrats need to understand clearly the rules laid out by the court are so that these matters do not end up back in litigation.
Commissioner Awashish talked about the gap between negotiation and litigation. At the one end of the spectrum, you are negotiating either the agreement or its implementation. At the other end, after the agreement fails, you have litigation. Surely there is some middle ground for the proper resolution of disputes. We need adequate dispute-resolution mechanisms.
Our answer -- and it may not be the right answer but it was designed to get some discussion going -- was to establish on a temporary basis a superior court of national jurisdiction under section 101 to deal with aboriginal and treaty rights issues at a senior court level. That would establish over time a body of precedence.
The Supreme Court is doing it by bits and pieces. Most cases never get there and those which do take 10 years and cost millions of dollars, after going through lower courts where decisions are made and repeatedly reversed on appeal. This causes great expense to the taxpayers and to First Nations and Inuit people. Even worse, there is a very great expense in terms of goodwill.
We need a temporary court at the Federal Court of Canada level. We do not need all these structures forever. A temporary court for 10 or 20 years could establish a body of precedence to figure out how we implement the treaties and agreements consistently across the country and to establish that body of case law that can be used by the regular court system later when you abolish this temporary court.
By then, the lawyers will have taken aboriginal and treaty rights in law school. The judges will be familiar with the precedents established. You do not need a permanent court, at least not in my opinion, to deal with just aboriginal and treaty issues. A secretariat and a court are essential.
The third element we mentioned was legislation. Bureaucrats are used to operating either based on departmental policy, which can change, or legislation, which changes less frequently. They are accustomed, for example, to dealing with the Financial Administration Act. They follow it. If they think one of their superiors is out of line, they will usually have the fortitude to raise the issue and remind them of the requirements of that act.
I think we need an "Aboriginal Rights Implementation Act" that spells out the guidelines of how this secretariat would work. Some people may think that ought to be constitutionalized so that it cannot simply be repealed. That is a fair debate, but something needs to be on paper. Officials like paper and so they should. The discretion rests with the elected people, not with the officials. They need clear guidelines that are as clear and detailed as the Financial Administration Act and its regulations, dealing just with implementation.
I could be wrong but that is the kind of discussion we need to have because the present system is not working. The minister has said as much in her "Gathering Strength" document; we do not want to repeat the same old mistakes of the past. Then we must change some of the structures and processes that caused those mistakes.
Mr. Awashish: One of the processes that is under way at the moment is a Cree Canada round table. It consists of the Cree leaders, primarily the Cree chiefs, and the cabinet ministers. This Cree Canada round table was established to create a new partnership between the Government of Canada and the Cree First Nations.
As I said earlier, I have personally heard about the statement of new relationships for too long. I heard it way back in 1975 when we signed the James Bay and Northern Quebec Agreement. There are three persons in this room who are signatories of the James Bay and Northern Quebec Agreement. I am sure they can agree that similar statements were made back in 1975.
Whether corporate memory or ministerial impotence will cause problems, we will have to wait and see. Only time will tell us the results of this new Canada Cree round table.
Senator St. Germain: I am looking for solutions. There is no point in dealing with the details if you do not have a solution. You must fix the structural problems first.
The bureaucrats look to the minister. One of you said that there are 1 million words in one of these reports. No minister, unless he or she came directly from practice of aboriginal law, could ever hope to understand the problem. The problem is so complex. The Haida on the West Coast and the Cree in north-eastern Quebec and near James Bay need totally different things.
The solutions will not come through a minister. Ministerial impotence will be there regardless of who is in government. Whatever happens in the world of politics will not make any difference here. You must have some way of overcoming the powerful bureaucrats.
This is one department where the money is increased every year. Politicians from all parties want to be seen as establishing good relations with our aboriginal peoples, from an international view as well as locally.
I ask you about the possibility of some kind of 10-year appointment of someone competent and with the power to deal with this. Have you a comment?
Mr. Saunders: I think the "someone" must be a court. Commissions exist all over the place. They make all kinds of findings which may be embarrassing to the bureaucracy or sometimes politically embarrassing. Those commissions can be shut down. Their findings can be ignored.
Commissions' effectiveness frequently depends on whether the media decides their work is interesting and so make an issue out it, or whether the public can identify with it and so make a political issue, or whether the Opposition picks it up in Parliament. If the media, the Opposition and the public opinion polls say it is not important, then no action will be taken.
On the other hand, the bureaucracy does what the courts tell them. They are frankly much more impressed with a court decision than anything else simply because if you do not obey it, you can go to jail.
In the Musqueam case, a number of years ago, in the beginning of the series of Supreme Court cases in which they looked at fiduciary responsibility, the court found that Indian Affairs had committed equitable fraud. The Government of Canada was required to pay $10 million in damages to the Musqueam band and the bureaucrats could not decide to ignore the case just because they did not like it or because the issue was not politically sexy or because the media had not picked up on it. The government paid; they had no choice. When a judge makes a decision, it is obeyed. Even on appeal, if it is upheld, the decision is obeyed. One just does not have an option.
We are now at the point where the concept of respecting obligations under treaties and land claims settlements must be driven home by legal decisions, if necessary. It must become second nature to this secretariat that one must not mess with land claims agreements. One must not ignore clear and explicit provisions of treaties. One must carry them out.
This mindset will change when the courts order the bureaucracy or administrators to carry out their obligations and plans. Perhaps in the future, when fewer negotiations are ongoing, government will take a more conservative view and realized they must carry out their obligations so they had better not promise too much. If they cannot promise too much, they may realize they cannot demand too much in terms of extinguishing rights.
Perhaps we should recognize that extinguishing of rights is not happening at all in certain areas. For example, in the Category IA and IA-N land, there is no extinguishment. Do not argue that there is some later on. Maybe extend that to something comparable to Category II lands.
If government is more disciplined by the knowledge that it must carry out its agreed obligations, it cannot promise as much when it sits down at the negotiating table with aboriginal people and it probably will not be in a position to demand as much either.
If the Government of Canada carried out all the promises it made in all the treaties, we would have a major fiscal burden for a number of years. It would be like fighting World War II again. It does not mean we should evade it, but it means we had better start today to find ways to implement the agreements so that we do not have a big backlog of unfulfilled obligations that come crashing down on us in terms of fiscal consequences.
We must honour these obligations from day one. The only way this will be achieved is by changing the climate in government so the bureaucrats do not look at treaties as offering some interesting policy options. That is not so. Treaties provide a list of responsibilities and obligations.
The First Nations and Inuit peoples are not faced with policy options as a result of their agreements. The Treaty 6 peoples cannot decide that although they surrendered the land where Edmonton is built, that they should to re-open the interesting policy option of reoccupying Edmonton. That is not an option for them.
In surrendering the land that Edmonton occupies now, the Treaty 6 peoples were given things in return. Those things are not options, they are obligations. Yet that mindset does not exist in the bureaucracy. The bureaucracy looks at a treaty and sees policy options and expenditure choices. These are obligations, not options.
Senator Pearson: I would like to compliment the photographer and the designer of the report. It is very well laid out and very readable.
You have spoken about the courts and the options under section 101 of the Constitution. I am interested in that. The report discusses the fact that your commission was the only body going to many of these communities and collecting information from time to time. It struck me that there is another big gap there. It was not particularly your job to convey the issues of individuals.
What do you think about the mechanism of an ombudsman? You heard complaints of too many layers between the people and the proper federal contact. I am not sure that another court is the best way to handle that. People have very particular issues now, at this moment. Waiting 10 years will not help them in their individual lives. This may be a little offside, but have you given some thought to that kind of ombudsman role?
Mr. Saunders: The commission has two roles under the legislation, as my friend just said. First, it must prepare a biannual report on implementation of the act, and this our report. Second, it must hear representations from any individual, First Nations representative or government or departmental official regarding issues arising under the act.
If there is a contention that a power is not being exercised properly or that a duty is not being fulfilled under the act, then there is an avenue to complain directly to us. We have had a number of representations in that regard.
If we took seriously and looked into every complaint, did a proper investigation, made the communities aware that we were available for that purpose and occasionally sought legal advice when it seemed appropriate, we could not do it all because we do not have the resources.
The suggestion to which you are alluding has been made many times in the community and by the leadership.
Senator St. Germain: How much does the commission get annually? Is that public information?
Mr. Saunders: Yes, it is. Until now we have been getting $480,000 per year on a regular basis. In the years in which we are required to report to Parliament, that has been supplemented by $175,000. That has been the case since the Cowie report in 1991 stated that we did not have enough money to do our job properly.
We met with the minister and presented a no-frills budget of $1,037,000. She took that under consideration. We pointed out that we would have to shut down operations now for the current year unless we got supplementary funding. She asked how much we needed and we said $150,000. I understand that we will receive that. I wish to go on record giving the minister credit for dealing with the problem in the current fiscal year.
For future years, departmental officials are offering $645,000, which does not even deal with inflation since the Cowie report was written. We have impressed upon the minister the need for more. We understand unofficially that they are seriously considering giving us a bit more. The problem is that it may not be enough. The offer of $645,000 will not do the trick, although $1,037,000 certainly would.
The minister asked how much we would need to do only the absolute minimum required by the act. As fiscal restraint is a reality, we said that to do the absolute minimum required under the act we would require $850,000. She said that they would look at that. We have not yet heard the result. We hope it will be positive.
Frankly, we do not think that, as a statutory commission, we should be running around on Parliament like a bunch of lobbyists looking for money. That is totally and absolutely inappropriate. Yet if you cannot do your job, you should say so.
I have said more than enough about money.
Senator Chalifoux: It is a great pleasure to have you gentlemen appear before us today. I recall that when the treaty was signed, we in Alberta were very envious.
You talk about a court system that you want to establish for a period of 10 years. I have reservations about temporary measures. I recall that income tax was initiated only for the duration of World War I, yet we still have it today. Such things tend to carry on and on.
What is your reaction to amending the Indian Act? I do not know when it was last amended, but it seems to be going on forever with no amendments although issues have changed.
I do not agree with my colleague that the Haida have different issues than the Cree. We all have issues of land, resources and treaties, right across the country.
I should like to hear your response to amending the Indian Act to address the needs of today.
Mr. Saunders: First, I should be more clear on the Indian Act and the Cree-Naskapi (of Quebec) Act. For virtually all purposes, the Cree-Naskapi Act replaces the Indian Act insofar as the Cree and Naskapi of northern Quebec are concerned. The Indian Act does not really apply.
Insofar as amendments are concerned, the government has spent approximately $20 million discussing possible amendments and various processes. The government has not acted and says that is due to lack of consensus among First Nations on a number of issues. That may be, but I am not here to debate that. I can say, however, that there is broad consensus in the community on the need for updating the Cree-Naskapi Act. I will give you some quick examples.
First, there are requirements in the act for quorums in order for a band to approve long-term borrowing. A meeting on long-term borrowing is not likely to draw a huge crowd and frequently the quorum provisions for that item are too high. There is a general consensus that they should be reduced. There is general consensus on that and on a number of other issues.
The act should be addressed quickly because there is a large measure of consensus. That is not the same kind of problem that existed with the Indian Act. I am not competent to comment at any length on the Indian Act.
Senator Chalifoux: Can the department override your act with the Indian Act when dealing with policy? Does it do so?
Mr. Saunders: No. The minister has much less discretion under the Cree-Naskapi Act than it has under the Indian Act. Commissioner Awashish has been involved in those discussions.
Mr. Awashish: It is true that the minister's discretion is more limited under the Cree-Naskapi Act. The First Nations who are covered by this act are enabled by the act to pass bylaws respecting, for example, the election procedures for their communities. The minister may disallow such bylaws within 40 days of receipt. The Governor in Council may make certain taxation regulations.
In other areas, the Cree-Naskapi Act authorizes the Cree and Naskapi communities to make their own decisions without the veto provided for in the Indian Act. The Cree-Naskapi act does recognize the Cree and Naskapi right to self-government to a large extent in conducting their own affairs.
You said that self-government deals with natural resources and other matters. This is the primary reason that this commission talks about the problems with the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. Section 7 of the Northeastern Quebec Agreement and section 9 of the James Bay and Northern Quebec Agreement obligates the Government of Canada to enact special legislation respecting self-government and administration of Category IA and Category IA-N lands. The Cree-Naskapi Act is the result of that obligation.
In the exercise, conduct and practice of self-government, the Cree First Nations and the Naskapi First Nations must deal with resources, lands, economic development, hunting, fishing, trapping matters and rights, and social and environmental protection matters. In one way or another, all these matters are dealt with by these modern-day treaties.
As a commission, we must look into the problems respecting those matters. After all, local governments must deal with land and resources, hunting, fishing, social and environmental protection, health matters, economic development matters, the development of natural resources, and so on. The report touches upon many of those issues.
Senator Chalifoux: Did I hear you correctly, or was I wrong when I heard you say that the minister has veto power over your act?
Mr. Awashish: The bands must submit their bylaws respecting elections to the minister and the minister can disallow the bylaw. If the minister does not act within 40 days, then the bylaw is not in effect.
Mr. Awashish: I wish to stress why there is a disallowance in the Cree-Naskapi Act on elections. I was personally involved in the negotiations respecting the Cree-Naskapi Act. As I recall it, the Government of Canada representatives, primarily the Department of Indian Affairs, wanted such a disallowance to ensure that the rules are democratic.
The Chairman: I should like to have clarification on that precise point in relation to the minister's ability to disallow decisions that are being made at the community level.
Is it not correct to assume that if you disallow the bylaws then you are, in a sense, disallowing everything that must be decided at the community level? That is to say, the bylaws are an instrument of the local authority.
Mr. Saunders: It is important to realize that the minister's power under the Indian Act is very broad. The minister can disallow any bylaw under the Indian Act. In the case of the Cree-Naskapi Act, the one that is critical is the power of the minister to disallow election bylaws.
The Chairman: Only the election?
Mr. Saunders: Yes. Mr. Awashish said that at the time the department was nervous that something other than their western model of democracy -- for example, some kind of tribal custom selection -- would be used. They wanted to ensure that they had a way to control it so that it was done by election, and so on. The Cree and Naskapi must have been a little suspect for no good reason.
Senator St. Germain: Perhaps this is a bit unfair -- and I will give you some time to think about it and you can get back to me later -- but could the Senate do anything in regards to the legislation that you are discussing? I think you are correct. I am not sure that the correct solution is the establishment of that 10- or 20-year court.
This is a huge area. It impacts on many of our aboriginal peoples. Possibly legislation could be instituted at the Senate level. That can be done because this is not a money bill; it is a question of living up to obligations. Do you have any reaction to that possible approach to this matter?
Unless someone does something, the pattern will continue. I have been here too long to believe in fairy tales. Partisanship does arise in this place, unfortunately. I am not accusing the present government; they are no different than we were when we were in power. It is the same thing. I believe that if we are to do something that counts, it may have to start from some place like this.
Mr. Saunders: We would like to get back to Senator St. Germain on that point.
The possibility you are raising sounds like something that should be explored. Our initial starting point in that kind of discussion is found in chapter 2 of our report, but you raise the possibility of some action. That is worth following up. I would not like to say right away that you should introduce a bill but, on the other hand, some action is in order here. That is a possibility. We would like to follow up with you or your staff, or whomever, on some details and work this out.
Senator St. Germain: That is fine. I would be very receptive to that. I am no expert in this area. I have tried to keep an open mind on the issue since I arrived here; however, actions that are basically unusual from the norm are not taken well. I think the commission will be back here 10 years from now and they will still be singing the same song.
The Chairman: I have several questions. I will try to limit myself because my knowledge of this particular area is such that I feel I am an insider here.
Senator St. Germain: You have a conflict then.
The Chairman: I will try my best not to raise anything that would put me in a conflicting position, but that is hard to do. I cannot change the fact that I am insider.
You bring forward an interesting concept. A few years ago, we dealt with the issue of the implementation problems focusing on the James Bay and Northern Quebec Agreement. We arrived with a definitive agreement that, up to this point in time, has not been fully utilized. A lot of tightening is required in terms of the implementation mechanism.
I have also learned to appreciate that the tools furnished to you must have some teeth to help you accomplish your tasks in the face of bureaucrats and bureaucracy which sometimes get in the way. It makes me wonder whether that is the real crux of the problem.
Another element of the problem is that deputy ministers and all those under them have their own jobs to protect and that becomes their utmost concern at times, rather than the concern of having government live up to its obligations.
This is my own personal experience, having been involved in the implementation of this same agreement over the last 20 years.
Having said that, I have also come to the conclusion, over the years, that unless we come up with an instrument that can be enacted by law and which has teeth -- that is, an instrument which is clearly defined -- then we will always have problems down the road and we will continue to live with an agreement that is outdated.
Let me cover a point that was not raised in this area. The commission covered the other side of the coin because they felt that, over the six reports, the frustration had a tendency to obscure your thoughts at times.
Twenty-three years have passed since the James Bay and Northern Quebec Agreement was signed. That agreement is far behind, even on the government policy itself. We signed that agreement because it was supposed to be legally binding on the government and not be dictated by policy changes made from time to time.
Let us suppose that we accepted the notion at the time of signing -- which we did not -- that policy would dictate the agreement. The agreement today is still very far behind today's policy. It is far behind the specific pieces of legislation that are formulated every year. The James Bay and Northern Quebec Agreement is totally outdated in many respects. The report contains some successes; that is true. The failures of the government to live up to their obligations outweigh those successes to an unbelievable extent.
Since I became chairman of this committee, I have raised from time to time the question of sustainability of those agreements which are signed regardless of which government may be in power. Will those agreements be alive tomorrow? No.
When the aboriginal component no longer has their own private funds and when the Government of Canada and the provinces decide not to provide any more funding, those agreements will die quickly. Now they are dying slowly.
One of the reasons I agreed to chair this committee was an understanding that we will not just be a regular committee but that we will also bring focus on issues which are important to aboriginals, to the federal government and also to the general public of Canada. We need harmony within our society, within Canada. Our numbers are increasing. There must be a break. The system must at least acknowledge that there is a problem. That is first. Doing something about the problem is something else.
I was enlightened by my colleague Senator St. Germain when he asked whether we could do something as senators. Yes, we can do something. We can put forward legislation. We can do that as a private member's bill. We can also generate discussions and interest. We can generate an issue. There is a great deal that senators can do in this field.
Sometime down the road we must decide whether we will bring forward certain recommendations such as the idea of a court and the idea of a legislation enabling the implementation mechanism with teeth to be put in place.
This committee will have to decide whether we will wait until we complete our studies to do that. We have a year and a half left to study on the governance conflicts and the relations between aboriginals and the Government of Canada and the provinces. We have the question of overlapping jurisdictions. How will we deal with that? How will the partnership actually work?
As Mr. Awashish has said, we have heard about this partnership many times and about renewing the relationship. When will we stop talking about it and get down to the brass tacks and come up with the absolute solution?
This Senate committee could be instrumental in this area. On the one hand, we believe that if you sign something, both sides must live up to it. We were asked, leading up to 1975, for a release and surrender of our rights. That was a hard thing to do not knowing whether there is a blank cheque that goes with it. We need to expose this.
To the people who are submitting the report, we will most likely be asking you to appear here again so we can hear about some of your recommendations. I have not had a chance to discuss this with my colleagues yet, but we need a subcommittee to begin to formulate a draft which responds to your points.
I am going beyond my authority but I feel it is necessary for me to address that because what you have brought forward is based on the modern agreement which was signed. This agreement is being used everywhere in this country. It is even used in the international community as an example of a country successfully coming to agreement with its aboriginal peoples.
Have they forgotten about the implementation side? What about the financial commitment, never mind implementation? If there is no financial appropriation in any piece of legislation, the agreement will not work from the beginning. We have seen that.
Other senators raised the question of the legitimacy of the concept of a court. I understand why you are coming up with the proposal of a court. It is because you have no alternatives left. You see that as a way of saying that if the court makes a decision, the politicians must act. That is true. If it is less than that, then the tribunals and fact-finding commissions and so on will not work.
We have been there many times. We do not need that anymore. We need action on the aboriginal side to move those things forward. Otherwise, Canada will have a reputation that its governments, year after year, break their promises. We need to break that cycle. As an instrument of the country, we should help as much as possible to break that cycle of broken promises.
On the court issue, you suggest a court system be established parallel to the court system which already exists. You say the expertise is out there, that you could classify an elite group who would deal with nothing but aboriginal issues. Have you done some thinking in terms of the appointment and the mechanics that go with it and how this court can become a reality within a short period? If we wanted to make it happen in a short period of time, how would the mechanics work?
Mr. Saunders: As a commission, we have not gone into too much detail on that. At a personal level, I have thought about it. I have spoken about it previously. These are not official commission positions; they are just ideas.
If one looks at how we are appointed, the act requires that our names be brought forward by the Cree Regional Authority and by the Naskapi band. The ministers receive those nominations from the leadership and pass them on to the PCO for an order in council.
Clearly, if one were looking at judges or justices of this sort of court, there should be some First Nations input. I admit that is a complicated process. There are approximately 680 First Nations, a substantial Inuit community and a large Métis community all recognized by the Constitution as aboriginal peoples. Clearly, if we are dealing with aboriginal rights, all of those people should have some input.
Certainly, we would need some ground rules. We will not nominate people with no knowledge of the law. However, there are many aboriginal and non-aboriginal lawyers with expertise in this area. There are even aboriginal and non-aboriginal judges in lower courts at this point in time who have some expertise in this field.
My suggestion is that the individuals would be qualified as members of the bar or the bench. Hopefully, some would be aboriginal. I would hope that all of them would be people nominated by the aboriginal communities in this country and then appointed as any other judges are appointed.
It is not unusual for Order-in-Council appointments to involve input from third parties. As I said, we are nominated elsewhere before we are appointed. Certainly the bar associations are now being consulted more and more by government on regular appointments to the bench. I do not think it would be anything extraordinary for the government to consult with aboriginal leadership around the country regarding suitably qualified individuals for appointment. That would be part of the technical response on appointment.
Senator Chalifoux mentioned earlier the problem of establishing a body that continues for a couple of hundred years after its usefulness is over. The legislation should have a sunset clause in it that would provide that the court comes to an end after a certain period unless there is an extension by Parliament to extend its life. This way this court would not drag on after the other courts are familiar with what is happening and are applying the jurisprudence.
We do not need an extra court. We have enough organizations that we do not need to create more unless there is a specific reason. The court then ought to dissolve when their job is done.
The Chairman: This would be formulated through the legislation. You mentioned in your report that the minister is incompetent. Would you consider this to be the responsibility of the Department of Justice to put that forward to see if they would be inclined to sit down and negotiate the concept as a part of the extension of the James Bay and Northern Quebec Agreement leading to the implementation problems?
Mr. Saunders: The Department of Justice, in many of these things, is providing advice to Indian Affairs and occasionally to other departments as a client in an adversarial situation with aboriginal people. They provide advice in support of policy decisions that do not respect agreements and treaties.
That is the problem. It is like you and I having an argument and each hiring our own lawyers. The lawyers support the side that hired them. The Department of Justice should not be doing that.
The Crown, in right of Canada, has a fiduciary responsibility as a trustee for aboriginal people. The courts have described over and over that fiduciary obligation and responsibility. They have been clear about it.
The Department of Justice would be doing us all a service, as taxpayers and as Canadians, if they were educating Indian Affairs officials on their fiduciary responsibilities and on their responsibilities as signatories of binding agreements. Instead of wasting a lot of time dragging us into court and fighting forever and then losing, they should be helping Indian Affairs to carry out its responsibilities in the first place so that we do not end up in court.
These officials often appear before us and do not know anything about pertinent legislation and cases. Someone should be teaching them these things and it should be the Department of Justice. Instead, the Department of Justice is acting as a lawyer in an adversarial position, rather than in the fiduciary role of the government.
The government is in a conflict situation. The department that is responsible for negotiating agreements and the department that should be carrying out fiduciary responsibilities are the same people. If my wife and I have a dispute, we do not go and ask my mother-in-law to solve it; we get an impartial third party.
Mr. Awashish: Over the past couple of hours, we talked about the report of the Cree-Naskapi Commission and the fact that the government has ignored the recommendations so far.
We spent quite a bit of time talking about the fact that the Government of Canada and the Government of Quebec have failed to properly implement the James Bay and Northern Quebec Agreement.
I wish to leave you with some thoughts respecting these particular problems. Fourteen 14 years have passed since the Cree-Naskapi act was passed. Twenty-three years have passed since the signing of the James Bay and Northern Quebec Agreement. In that time, it has become evident to the Cree-Naskapi Commission that the essential element in righting any wrong in the quest for justice for the Cree and Naskapi governments and in the proper implementation of these modern-day treaties or agreements depends completely on the political will of the powers that be. Therefore, I ask and leave you with one question: Is there such political will?
The Chairman: Give me a couple of days to talk to my colleagues and I will get back to you to see if we can begin to carve out a possible short-term route that we can examine and also a long-term route. There are two elements required.
Thank you for your excellent presentation this morning. This will certainly help us in our studies with regard to the Royal Commission report concept of governance, local, regional, provincial and federal, and even in looking at the third order concept under section 35 of the British North American Act.
The committee adjourned.